1 H V 

5079 

■/«<B4- 




• 



THE 

VIRGINIA 

PROHIBITION 

ACT 



+■ 



BY 



T. B. BENSON 




2U 



Class 

Book 

Cop>Tight>;° 



CCPXRIGHT DEFGSm 



^ A TREATISE 

ON 



The Virginia Prohibition Act 



By T. B. Benson y 

Member of Michie Editorial Staff, Associate Editor of Virginia Law Register, and Author of " Questions 
and Answers to Bar Examinations," etc. 



Price: Buckram, $2.50; Paper, $2.25 



Published by 

L. F. Smith and W. F. Souder, Jr. 

Charlottes vielE, Va. 

Box 325 



Co 



P^) 



<5* 



Copyright 1916 
T. B. Benson 



^ 



DEC 21 1916 
©CU453 



O.A453204 



Preface. 



The object of this work is to present the legal meaning and 
effect of "The Prohibition Act" of the Virginia Legislature of 
1916. An effort has been made to analyze the act and arrange 
the various provisions relating to each subject under the sep- 
arate sections. Under each will be found a presentation of the 
construction and constitutionality of the act with reference to 
the particular subject. This work is not intended as an argu- 
ment for or against the advisability of the enactment of the 
law, nor is it primarily intended to attack or uphold its con- 
stitutionality, but a number of constitutional questions are sug- 
gested and answered where they appropriately arise. 

T. B. Benson. 
Charlottesville, Va., 
November, ipi6. 



Table of Contents, 



I. Constitutionality, Construction and Definition of Terms. 
II. Prohibited Acts. 

III. Prohibited Intoxicants. 

IV. Carriers. 
V. Druggists- 

VI. Hotels and Boarding Houses. 
VII. Hospitals and Laboratories. 
VIII. Clubs, Billiard Rooms, etc. 
IX. Minors, Females, Students, Intemperates, Physicians and 
Manufacturers. 
X. Records, Affidavits and Stamps. 
XL Commissioner of Prohibition, and Deputies, Inspectors 
and Attorneys. 
XII. Enforcement of Act. 

XIII. Civil Damage Act. 

XIV. Property and Contract Rights. 



4| 



The Virginia Prohibition Act 



I. Constitutionality, Construction and Definition of 

Terms. 

§ 1. Constitutionality of Act. 

§ 2. In General. 

§ 3. Title and Subject Matter. 

§ 4. Police Regulation. 

§ 5. Regulation of Interstate Commerce. 

§ 6. Personal Liberty and Private Property. ■ 

§ 7. Partial Validity. 

§ 8. Time of Taking Effect. 
§ 9. Repeal of Prior Statutes. 
§ 10. Construction of Act. 
§ 11. Definition of Terms. 

- Ardent Spirits. 

- Soft Drinks. 

- Cider and Wine. 

- Home. 

- Person. 

- Intoxication. 

- Intemperate Person, and Person Addicted to Xarcotic 
Drugs. 

- Commissioner of Prohibition. 

- Carrier. 

- Druggist. 

- Cities and Towns. 

- Other Definitions. 

§ 1. Constitutionality of Act — § 2. In General. 

The act is certainly not unconstitutional as a whole. Xo ob- 
jection can be raised either under the Constitution of the United 
States or of the state which defeats it in its entirety. The 



§ 


12. 


§ 


13. 


§ 


14. 


§ 


15. 


§ 


16. 


§ 


17. 


§ 


18. 


§ 


19. 


§ 


20. 


§ 


21. 


§ 


22. 


§ 


23. 



Editors Note. — In the body of the work "The Prohibition Act" is 
referred to as "the act" and its various sections are referred to by 
number, and the sections of this work are referred to as "post" and 
"ante." 

[5] 



6 THE VIRGINIA PROHIBITION ACT. 

validity of certain of its provisions may be questioned. This 
is discussed where the particular provisions are treated in the 
different parts of this work. The constitutionality of similar 
acts of other states has been upheld. The Constitution of Vir- 
ginia provides that the general assembly shall have full power 
to enact local option or dispensary laws, or any other laws con- 
trolling, regulating, or prohibiting the manufacture or sale of 
intoxicating liquors. 3 

Of course, this provision, being a part thereof, must be con- 
strued with reference to other provisions of the constitution. 
It is enacted with reference to a particular subject, and the rule 
that specific prevail over general provisions applies. This pro- 
vision, therefore, prevails over general provisions in the con- 
stitution. But as to other specific provisions it stands upon an 
equal footing. While the provision is in its nature penal, and 
therefore to be construed strictly, it is also enacted with refer- 
ence to the public welfare and is to be construed in furtherance 
thereof. Under it the sale of ardent spirits may be entirely 
prohibited, or regulated in any manner the legislature may deem 
wise, without supervision or control by the courts. 4 

§ 3. Title and Subject Matter. 

The title of the act is apparently sufficient to cover the various 
provisions in its body, as is required by the Constitution ; 5 and 
its provisions relate to the same subject matter and are suffi- 
ciently germane to each other to comply with the constitutional 
requirement of singleness of object. The constitutional re- 
quirement that a statute shall embrace only one object does not 
mean that each and every means necessary to accomplish an 
object in the law must be provided for by a separate act relat- 
ing to it alone. A statute that deals with several branches of 
one subject does not thereby violate the constitutional require- 



3. Va. Const., § 62. 

4. Hulvey v. Roberts, 106 Va. 189, 55 S. E. 580. 

5. Va. Const., § 52. But see, State v. Barkley (La.), 70 So. 336, 
holding an act of Louisiana unconstitutional on that ground. 

6. Va. Const., § 52. 



CONSTITUTIONALITY. 7 

merit that the act must have only one object. 7 The only provisions 
of the act which may be questioned as not relating to a single 
subject are those relating to soft drinks. 

§ 4. Police Regulation. 

It is provided that the act shall be deemed an exercise of 
the police power of the state for the protection of the public 
health, peace and morals. 8 Of course, the question of whether 
or not the act is, in fact, an exercise of such power can not be 
answered by the legislature of the state, but is to be answered 
by the Supreme Court of the United States. A police regula- 
tion to be valid under the Constitution of the United States, must 
(1) be intended to operate as a bona fide police regulation, (2) 
be reasonably necessary for that purpose, and (3) must op- 
erate reasonably, without undue interference with those, powers 
granted by the state to the United States. The provision in the 
act answers the first of the above requisites, for the legislature 
must be conclusively presumed to have intended a bona fide po- 
lice regulation, even by a federal tribunal. The other two requi- 
sites are to be found answered either in the existing or future 
decisions of the Supreme Court of the United States. The act 
is undoubtedly a valid police regulation, and it is unnecessary to 
refer to authorities. In the note will be found a few recent cases 
on similar statutes of other states. 9 



7. State v. Doremus (La.), 68 So. 605. 

8. "This entire act shall be deemed an exercise of the police power 
of the State for the protection of the State, for the protection of the 
public health, peace and morals, and the prevention of the sale and 
use of ardent spirits, and all of its provisions shall be liberally con- 
strued to effect these objects." § 58. 

9. Vance v. Vandercook Co., 170 U. S. 483; Mugler v. Kansas, 123 
U. S. 623; Clark Distilling Co. v. Western Maryland Ry. Co., 219 
F. 333; Southern Express Co. v. Whittle, 69 So. 652; Ex parte Coombs 
(Cal.), 147 Pac. 131; State v. Phillips, 67 So. 651; State v. Little, 88 
S. E. 723. The state may regulate or prohibit the sale of near-beer. 
State v. George, 67 So. 953, 136 La. 906. The state may regulate 
nonintoxicating malt liquors. State v. George, 67 So. 953, 136 La. 906. 
Bonner Law (Act Feb. 8, 1915; Acts 1915, p. 44), § 12, is a valid 



8 the virginia prohibition act. 

§ 5. Regulation of Interstate Commerce. 

The right of the state legislature to prohibit the shipment into 
the state of intoxicating liquors under the provisions of the 
Webb-Kenyon Act is not a regulation by the state of interstate 
commerce. 10 The YVebb-Kenyon Act provides, in substance, 
that the shipment or transportation, in any manner or by any 
means whatsoever, into any state, of any spirituous, vinous, 
malted, fermented or other intoxicating liquor of any kind, in- 
tended, by any person interested therein, to be received, pos- 
sessed, sold or in any manner used, either in the original pack- 
age, or otherwise, in violation of any law of such state, is pro- 
hibited. 11 This act is constitutional. 12 Congress has power to 
outlaw and exclude absolutely or conditionally from interstate 
commerce intoxicating liquors or any other deleterious substance, 
but the power to so exclude is confined or limited to substances 
deleterious in their nature and can not be extended so as to 
include substances beneficial or innocuous. 13 The act of the 
Virginia legislature is certainly, in its general provisions at 
least, within the terms of the act of Congress. 

"The control of the traffic in intoxicating liquors is simple 
enough, once a majority vote for the prohibitory law is secured. 



exercise of the police power, and does not conflict with Const. 1901, 
§§ 1, 35, guaranteeing the rights of life, liberty, and the pursuit of 
happiness, and limiting the rightful functions of government. So. 
Exp. Co. v. Whittle (Ala.), 69 So. 652. But Acts of Ky. of 1914. c. 
7, § 1, were held unconstitutional. But this was because of the pe- 
culiar provision of the Kentucky Constitution. Commonwealth v. 
Smith, 173 S. W. 340, 163 Ky. 227. 

10. West Virginia v. Adams Exp. Co. (Fed.), 20 Va. Law Reg. 815. 
Those who consider the act unconstitutional as interfering with 

interstate commerce will find an interes'ting article sustaining their 
view in the Virginia Law Review for April. 1916, 3 Va. Law Rev. 
483, by Lindsay Rogers, entitled "The Virginia Prohibition Act and 
the Interstate Commerce Clause of the Federal Constitution." 

11. Act of Congress, March 1, 1913, ch. 90. 

12. Taylor v. Com., 117 Va. 909, 1 Va. Law Reg. X. S. 357. 364. 
See Adams Exp. Co. v. Kentucky. 238 U. S. 190. 59 L. Ed. 1267. See 
also, cases cited in Fed. St. Anno., Supp. 1914, p. 209. 

13. West Virginia v. Adams Exp. Co. (Fed.), 20 Va. Law Reg. 815. 
See 15 Va. Law Reg. 980. 



CONSTITUTIONALITY. 9 

However, the thoroughgoing prohibitionist is not satisfied with 
that result, but would lay the heavy hand of law on the man 
who wishes to import an occasional drink for himself. Up to 
date success in that direction has not been conspicuous. It was 
thought that the Webb-Kenyon Law would solve the difficulty. 
But that act was promptly construed as inapplicable to a ship- 
ment of liquors for personal use into a state where possession 
for such use was not forbidden by law (Adams Express Co. v. 
Kentucky, 238 U. S. 190, Ann. Cas. 191 SD 1167). Under the 
decision cited and those following it, only a direct prohibition 
by state law of the drinking of intoxicants will bring a shipment 
designed for personal use within the scope of the Webb-Kenyon 
Law, and that prohibition is, by the great weight of authority, 
beyond the legislative power. (Com. v. Campbell, 133 Ky. 50, 
19 Ann. Cas. 139 and note; Cortland v. Larson, 273 111. 602; 
compare In re Crane, 27 Idaho ,671.) In the Kentucky case cited 
supra, it was said : 'The right to use liquor for one's own com- 
fort, if the use is without direct injury to the public, is one of 
the citizen's natural and inalienable rights, guaranteed to him by 
the constitution, and can not be abridged as long as the absolute 
power of a majority is limited by our present constitution. The 
theory of our government is to allow the largest liberty to the 
individual commensurate with the public safety, or as it has been 
otherwise expressed, that government is best which governs the 
least. Under our institutions there is no room for that inquisi- 
torial and protective spirit which seeks to regulate the conduct 
of men in matters in themselves .indifferent, and to make them 
conform to a standard not of their own choosing, but the choos- 
ing of the lawgiver; that inquisitorial and protective spirit which 
seeks to prescribe what a man shall eat and wear, or drink, or 
think, thus crushing out individuality and insuring Chinese inertia 
by the enforcement of the use of the Chinese shoe in the matter 
of the private conduct of mankind.' " 13a 

But the Kentucky and the Supreme Court decisions above men- 
tioned are based upon the provisions of the Kentucky constitu- 
tion, which differ from those of the Virginia constitution, and 



13a. 20 Law Notes 162. 



10 THE VIRGINIA PROHIBITION ACT. 

the decision? are not applicable to a discussion of the constitu- 
tionality of the Prohibition Act of Virginia. The Supreme Court 
of Kentucky declared the state law invalid as in violation of the 
Constitution of the State and the Suprme Court of the United 
States followed its decision on the question of the validity of 
the state law. 

§ 6. Personal Liberty and Private Property. 

The constitutions of both the United States and of Virginia 
contain guaranties of the protection of the rights of personal 
liberty and private property, but such rights are not put on a 
higher plane than the police power of the state. On the con- 
trary, the police power is superior to private rights and against 
its exercise such rights can not be set up. The personal liberty 
and private property rights must succumb to public necessity. 
The rights exist and are recognized but their possessor is es- 
topped to claim them to the detriment of the community. Xor 
can he claim compensation for his injury. The only instance 
in which compensation can be obtained is where private prop- 
erty is taken for public use under the power of eminent domain. 
The act is a police regulation, not an exercise of the power of 
eminent domain in the sense used in the constitutions with ref- 
erence to compensation, nor is property taken for public use. 14 

It has been said by the Supreme Court of the United States 



14. The Alabama Act is not in conflict with Const. U. S. Amend. 
14, as abridging the privileges or immunities of citizens of the United 
States, or as depriving the citizen of life, liberty, or property with- 
out due process of law. So. Exp. Co. v. Whittle (Ala.), 69 So. 652. 

Const. 1901, § 1, guaranteeing the right of life, liberty, and the pur- 
suit of happiness, and section 35, declaring that the sole object and 
only legitimate end of government is to protect the citizen in the 
enjoyment of life, liberty, and property, and when the government 
assumes other functions it is usurpation, do not restrict the rightful 
exercise of the police power by the state; and the legislature may 
ascertain when the welfare of the people requires the exercise of the 
police power, as well as what are appropriate measures to that end, 
subject only to the right of the courts to see that the measures of 
police do not arbitrarily violate constitutional rights. So. Exp. Co. 
v. Whittle (Ala.), 69 So. 652. 



CONSTITUTIONALITY. 11 

that if a case were presented in which a person owning liquor 
at the time a law is passed by a state absolutely prohibiting any 
sale of it, it would be a very grave question whether such a law 
would not be inconsistent with the provision of that amendment 
which forbids the state to deprive any person of life, liberty, 
or property without due process of law. 15 This is pure dictum, 
and it may be doubted if it will ever be followed to defeat the 
police power of the state to prohibit the sale of ardent spirits. 
If it should be, only those persons who purchased ardent spirits 
before the passage of the act can complain that they were de- 
prived of property without due process of law. Persons licensed 
to sell can complain in no case, for they have had sufficient 
length of time in which to dispose of their property and due 
process of law has not been denied them. 

§ 7. Partial Validity. 
The act provides for the contingency of its partial invalidity, 
by declaring that, if any section is declared unconstitutional, the 
remainder of the act shall be enforced. 16 In order for a stat- 
ute to have partial validity it is necessary, (1) that its valid and 
invalid parts be independent of each other and that the valid 
part be sufficient in itself to be en forcible, and (2) that the 
legislature shall intend such valid part to be en forcible without 
the remaining invalid part. The provision in the act fulfills the 
second requisite, but not the first. Such provision is to be con- 
strued to mean merely that, if the valid part is in itself sufficient 
for enforcement, the legislature intends that it shall be so en- 
forced. 17 



15. Bartemeyer v. Iowa, 18 Wall. 129, 21 L. Ed. 929. 

16. "If any section or provision of this act or any part of any 
section shall be declared unconstitutional by the Supreme Court of 
Appeals of Virginia, or the Supreme Court of the United States, the 
part so declared unconstitutional shall cease to be operative, but the 
remainder of the act and every section or part thereof not so de- 
clared unconstitutional shall continue to be the law of this State." 
§ 46. 

17. A statute may be valid in one part and void in another, but if 
the two parts are not interdependent, and are easily severed, the 
courts will give effect to that which is valid. City of Danville v. 
Hatcher, 9 Va. Law Reg. 331. 



12 the: virginia prohibition act. 

§ 8. Time op Taking Effect. 

It is provided that the act shall be in force on and after the 
first day of November, nineteen hundred and sixteen, except 
so much thereof as provides for the election by the present gen- 
eral assembly of a commissioner of prohibition and the com- 
mencement of the term of the said commissioner, as to which 
said exceptions an emergency is hereby declared to exist, which 
said provisions shall take effect at once. 18 Wineries have until 
January 1, 1918 to ship out of the state wine manufactured at 
the date of the passage of the act. 19 

§ 9. Repeal of Prior Statutes. 

It is provided that the act shall repeal all other acts or parts 
thereof in conflict with its provisions ; 20 but that the act relat- 
ing to the sale of ardent spirits in the counties of Tazewell, Giles, 
Buchanan and Dickenson, or any other prohibitory act for any 
county or town, or any provision of any charter of any city or 
town, or any ordinance of any city or town which is more pro- 
hibitory than the provisions of the act shall not be repealed. 
"None of the provisions of this act shall be construed as re- 
pealing, annulling or in any way abrogating or superseding the 
act of the general assembly, approved March twenty-fifth, nine- 
teen hundred and two, as amended, relating to the sale of ardent 
spirits in the counties of Tazewell, Giles, Buchanan and Dick- 
enson; or any other prohibitory act for any county or town, or 
any provision of any charter of any city or town in so far as 
said act or acts or charter provision restricts, prohibits or limits 
the sale, manufacture or delivery of ardent spirits beyond the 
provisions of this act, but this act shall be construed as sup- 
plemental to said act or acts and charter provisions and in aid 
thereof, and such special act or acts and prohibitive charter pro- 
visions, beyond the provisions of this act, are hereby expressly 
continued unrepealed and the same shall remain with like force 
and effect as if this act had not been passed. Xor shall any 



18. Sec. 77. Byrd Law.— 3 Va. Code, p. 

19. § 62. 

20. § 76. See 2 Va. Code, p. 2261. 



CONSTRUCTION. 13 

provision of this act be construed as repealing any ordinance 
of any town or city in so far as the same restricts and limits 
beyond the provisions of this act, the transportation, delivery, 
receipt, possession, sale, offering for sale, advertising for sale, 
or in any way dispensing, giving away or receiving orders or 
transmitting orders, for ardent spirits as herein defined." 21 

Of course, other statutes not in conflict are not repealed. For 
citation of other statutes relating to ardent spirits, see note. 22 

§ 10. Construction of Act. 

As of any other statute, the object of the construction of the 
act is to determine the intention of the legislature as expressed 
in the language used. The search for the intention of the legis- 
lature is guided by certain rules, which the courts have estab- 
lished and followed, 23 among which is the rule that a penal stat- 
ute is to be construed strictly. This is changed by the provision 
of the act that it shall be liberally construed to effect the protec- 
tion of public health, peace and morals, and the prevention of the 
sale and use of ardent spirits. 24 In addition to the general rules 
of construction referred to, there are certain aids to which the 
court may refer, among which is the legislature's construction of 



21. § 72. As to repeal of other acts by Byrd Law, see 3 Va. Code, 
p.p. 781, 783. 

22. As to the Enacting Act, see Acts 1914, p. 20. As to Byrd Act, 
see 3 Va. Code, p. 766; 13 Va. Law Reg. 924. As to local option, see 
Va. Const. § 62; Va. Code, §§ 581-587c. As to bottling and refilling, 
etc., see Code, § 1906a. As to charge to grand jury, see 2 Va. Code, 
p. 2260. As to cider, see 3 Va. Code, p. 658; Acts 1914, p. 24. As 
to false oath of minor as to age, see Code, § 3828a. As to gaming 
in bar-room, see Code, §§ 3820, 3821. As to license for manufacture, 
see Acts 1912, p. 544. As to license for sale, see 2 Va. Code, pp. 2253- 
2265; Acts 1915, p. 63. As to license for sale by club under Act 1910, 
see 3 Va. Code, "906. As to power of legislature, see Va. Const. 
§ 62. As to power of city to regulate, see Code, § 1038d. As to 
report to legislature by board of public health, see Code, § 1716. 
As to sample liquor merchant, see 2 Va. Code, p. 2261. As to use 
prohibited in prisons, see Code, § 928. As to United States tax re- 
ceipt as evidence, see 3 Va. Code, p. 684. 

23. These rules are set out in 1 Va. Law Reg. N. S. 512. 

24. S 58. 



14 THE VIRGINIA PROHIBITION ACT. 

its own act. 25 While the courts are vested with the power to 
construe an act, and must necessarily and ultimately do so, it is 
perfectly plausible to state that, if the legislature has power to 
enact a law, it has power to say what that law shall mean. Rules 
of construction are presumed to have the tacit sanction of the 
legislature and can be expressly changed by such body. The leg- 
islature had the power in this instance to declare that the provi- 
sions shall be liberally construed, and the act must, therefore, be 
given a liberal construction by the courts. The legislature has 
the same power in this respect that it has to define certain terms 
used. As above stated, the rule of strict construction is only 
one of a number of other rules and is really not one of so great 
importance, although often resorted to by the courts. It is usu- 
ally resorted to, however, only in the last instance. Rules that 
a statute must be construed as a whole and that statutes in pari 
materia must be construed with reference to each other, as well 
as a number of other rules, prevail over the rule that a penal 
statute is to be construed strictly. This provision of the act is 
not of as much force as it appears upon first reading. There are 
but few provisions to which it is applicable. 

§11. Definition of Terms — § 12. Ardent Spirits. 

The first section of the act provides : The words "ardent spirits," 
as used in the act, shall be construed to embrace alcohol, brandy, 
whiskey, 26 rum, gin, wine, porter, ale, beer, 27 all malt liquors, 28 
absinthe, 29 and all compounds or mixtures of any of them; all 



25. 1 Va. Law Reg. N. S. 514. 

26. Whiskey is a spirit distilled from grain, barley, maize, (corn), 
wheat, rye, etc. Mullins v. Com., 115 Va. 945, 953, 79 S. E. 324. 

27. "Near beer" is a malt liquor. Howard v. Acme Brewing Co., 
83 S. E. 1096. 

28. Turner v. State, 70 So. 971; Collotta v. State,* 70 So. 460; How- 
ard v. Acme Brewing Co., 83 S. E. 1096. The general term "malt 
liquors'' includes both intoxicating and nonintoxicating malt liquors. 
Commonwealth v. Goodwin, 109 Va. 828, 64 S. E. 54. 

29. The enumeration does not include cider, under the decision in 
Donithan v. Com., 109 Va. 845, 64 S. E. 1050. A liquor which will 
produce sickness before intoxication is not an intoxicant. Geer Drug 
Co. v. Atlantic Coast Line R. Co., 88 S. E. 448. 



DEFINITIONS. 15 

compounds or mixtures of any of them with any vegetable or 
other substance; and also all liquids, mixtures or preparations, 
whether patented or otherwise, which will produce intoxication; 
fruits preserved in ardent spirits, and all beverages containing 
more than one-half of one per centum of alcohol by volume, 
except as herein provided. 30 This definition is ambiguous and 
may bear either of two constructions. The provisions, all liquids 
which will produce intoxication and all beverages containing 
more than one-half of one per centum of alcohol, may be con- 
strued either as cumulative and in addition to the prior provisions 
or may be construed as restrictive of those prior provisions. 

Construed as Cumulative or Additional. — If the provisions are 
construed as cumulative and to have been inserted in the act by 
way of double precaution, such provisions do not restrict other 
parts of the section. If so construed, "ardent spirits" embrace, 
(1) alcohol, brandy, whiskey, rum, gin, wine, porter, ale, beer, 
all malt liquors and absinthe, of whatever per centum of alcohol 
and whether or not intoxicating; (2) all compounds or mixtures 
of any of them with each other or with any vegetable or other 
substance, and again it is immaterial whether or not the com- 
pound or mixture contains more than one-half of one per centum 
of alcohol or whether or not intoxicating; (3) fruits preserved 
in ardent spirits, in any quantity whatever of alcohol and whether 
or not intoxicating; and (4) all liquids, mixtures or preparations, 
whether patented or otherwise which will produce intoxication. 

Under this construction the provision "all beverages contain- 
ing more than one-half of one per centum of alcohol by volume," 
is a mere surplusage, because alcohol, in whatever quantity, is 
included in the first enumeration. The act reads that ardent 
spirits embrace alcohol and that ardent spirits embrace more than 
one per centum of alcohol. When the two provisions are con- 
strued as cumulative, the latter must be considered as mere sur- 
plusage and put in the definition by way of precaution. The pur- 
pose of the act and meaning of its provisions indicate that the 
legislature was particularly zealous that the prohibited ardent 



30. § 1. See 2 Va. Code, p. 2254; 3 Va. Code, p. 766. 



16 THE VIRGINIA PROHIBITION ACT. 

spirits should embrace all beverages containing ardent spirits or 
which are intoxicating. 

Construed as Restrictive and Qualifying. — While the above 
may possibly have been the intention of the legislature, it would 
seem not to be the proper construction of the definition, if force 
and effect is to be .given to the whole of the section of the act. 

By construing the provisions that ardent spirits shall embrace 
all liquids which will produce intoxication and- all beverages con- 
taining more than one-half of one per centum of alcohol, as re- 
strictive of the prior provisions, the words "ardent spirits" mean, 
(1) alcohol, brandy, whiskey, rum, gin, wine, porter, ale, beer, 
all malt liquors and absinthe, which will produce intoxication or 
which contain more than one-half of one per centum of alcohol 
by volume; (2) all compounds and mixtures of any of them with 
each other or with any vegetable or any other substance, which 
will produce intoxication or which contain more than one-half of 
one per centum of alcohol; (3) fruits preserved in ardent spirits, 
which preservative must be intoxicating or contain more than 
one-half of one per centum of alcohol; (4) all other liquids, mix- 
tures or preparations, whether patented or otherwise, which will 
produce intoxication; and (5) all other beverages containing 
more than one-half of one per centum of alcohol by volume. 

The part of the act now under construction is a single section 
bearing upon a single subject, the definition of ardent spirits, 
and must necessarily be construed as a whole. Aside from the 
rules that the express words of a statute or the apparent intent 
of the legislature must prevail, the rule that a statute must be 
construed as a whole is most cogent of all rules of construction. 
In so construing a statute, and particularly its parts relating to 
a single subject, such parts should be so construed as to give 
effect to each and all of them, by so doing, effect is given to the 
several intents of the legislature and none of them are found to 
be meaningless. The two provisions, (1) that ardent spirits em- 
brace alcohol, and (2) that ardent spirits embrace more than 
one-half of one per centum of alcohol, should be construed that 
each may stand and become effective, and in order to give them 
that construction the first must be construed to be qualified by 
the second. Such construction defeats neither provision, but 



DEFINITIONS. 17 

gives effect to both with a slight qualification of the one. This 
is evidently the intention of the legislature. By intention, it 
must be borne in mind, is meant not what may be presumed the 
legislature intended, but that intention expressed in the words of 
the statute. 

Under this construction, and for all practical purposes, ardent 
spirits may be defined to be all liquids and compounds or mix- 
tures thereof, which will produce intoxication or which contain 
more than one-half of one per centum of alcohol by volume. 

Further Remarks on Definition. — By the use of the words 
"compounds or mixtures," the legislature used apt and compre- 
hensive terms. A compound is defined to be a union of two or 
more ingredients in definite proportions by weight, so combined 
as to form a distinct substance. A mixture is defined to be a 
mass of two or more ingredients, the particles of which are sepa- 
rate, independent and uncompounded with each other, no matter 
how thoroughly and finely commingled. 31 By the use of such 
words the legislature has embraced alcohol, etc., when found with 
any other substance. 32 

This last statement may not go unquestioned for, in speaking 
of compounds and mixtures, the legislature uses the words "with 
any vegetable or other substance," and "or other substance" may, 
under the rule of ejusdem generis, be construed to mean sub- 
stance of a kindred kind to vegetable substance. Here again 
must be reconciled different provisions. The provisions, "all 
compounds or mixtures of any of them," and "all compounds 
or mixtures of any of them with any vegetable or other sub- 
stance," must be read together. By so reading them there is an 



31. Webster's Diet. 

32. An ordinance prohibiting the sale of alcoholic liquors, is vio- 
lated by a sale of alcohol as a beverage, however diluted or dis- 
guised. Feagin v. City of Andalusia, 67 So. 630. That the forbidden 
liquor is sold in a mixture is not a defense. The offense is in the 
sale and storing of the unlawful part of the mixture. Belton v. 
Campbell, 88 S. E. 30. But intoxicating liquor is not a beverage if 
so mixed that its character is so destroyed as to become in fact a 
medicine. Berner v. McHenry, 151 N. W. 450. 



18 THE VIRGINIA PROHIBITION ACT. 

apparent intent of the legislature to embrace any and all com- 
pounds or mixtures, and where the intent is apparent it prevails 
over the rule of ejusdem generis. To understand this it is neces- 
sary to hear in mind the fact that the intent is not a mere rule of 
construction hut the statute itself, while the rule of ejusdem gen- 
eris is a mere rule of construction to be resorted to to find the 
intent of the legislature. If such intent is apparent, the rule is 
not to be invoked. The intent seems to be here apparent. 

The act reads "except as herein provided," which, of course, 
refers to other sections of the act. By reference to the other 
sections, it is apparent that what the legislature meant is to pre- 
vent any conflict between this and other sections and not to qual- 
ify the definition here given. It is best to read the other sections 
as specific exceptions to and not qualifications of the definition 
here given. 

§ 13. Soft Drinks. 

The words "soft drinks," as used in the act, shall be construed 
to embrace and include any and all beverages, patented, domestic 
or otherwise, of every description and kind, which may be of- 
fered for sale, in this state, not embraced in the words "ardent 
spirits" as defined in the act. 33 The provision, "not embraced in 
the words 'ardent spirits,' " must be construed with reference to 
the definition of ardent spirits. 

§ 14. Cider and Wine. 

By a former act of the legislature it is provided that pure 
apple cider and other ciders shall be construed to mean the pure 
juice of the fruit used without admixture whatever, except pre- 
servatives, and not to contain more than seven and a half per 
centum of alcohol. 34 Cider is not a spirituous liquor, nor does it 
belong to any of the other classes enumerated, as malt liquors, 
whiskey, brandy, wine, ale, beer or mixtures thereof. 35 Xonin- 
toxicating cider is defined iby the act to be cider containing not 



33. § 64a. 

34. Devine's case, 107 Va. 860, 60 S. E. 37; 3 Va. Code, p. 658. 

35. Donithan v. Com., 109 Va. 845, 64 S. E. 1050. 



DEFINITIONS. 19 

more than one per centum of alcohol by volume. 36 Wine is enume- 
rated in the classification of ardent spirits but is nowhere denned 
in the act. 37 

§ 15. Home. 

"The word 'home' as used herein, shall be the permanent resi- 
dence of the person and his family, and shall not be construed 
to include a club, fraternity house, lodge room or rooms, or place 
of common resort, or room of a guest in a hotel or boarding 
house." 38 Another section of the act provides : "It shall be 
unlawful for ardent spirits to be kept, stored, sold, distributed, 
given away, or used in or at any club house, fraternity house, 
lodge or meeting place, whether such meeting place is a house, 
room, boat, car, or any place in any building, or in the open air, 
on land or water, or in any place, except in a bona fide "home" 
as hereinafter provided." 39 The provision relating to the keep- 
ing of ardent spirits by females requires that the home be bona 
fide. 40 

Quite a number of questions can be raised as to what is a home, 
and many of them must need be answered by the particular facts 
of the case. Home is defined generally as the permanent resi- 
dence of the person and his family, and to this general statement 
there is the special exception of clubs, etc. The home need not 
be a building used exclusively as a residence, for a person may 
have his occupation or business at his place of residence, and 
yet such place will be his home. A doctor may have his office 
and a cobbler his shop in a building which may also be his home. 
The test of what is a home would seem to be, is such place the 
separate residence of the person, as distinguished from a lodging 
room or other place of abode mentioned in the exceptions. The 
words "and his family" in many instances have no force, for two 
reasons, (1) the person may have a home without having a 
family, and (2) he may have a family and yet his place of abode 
may be a lodging room, room in a hotel or boarding house. The 



36. § 8. 39. § 16. 

37. § 1. 40. § 42. 

38. § 61. 



20 THE VIRGINIA PROHIBITION ACT. 

question has been asked, is a hotel in which he lives the home 
of a hotel keeper? If it is the residence of himself and family, 
if he has one, it undoubtedly comes within the definition of home 
as the permanent residence, and does not come within the excep- 
tion room of a guest in a hotel or boarding house, for his place 
of residence is not the room of a guest. The exception contains 
the words "place of common resort." This may apply to any 
place of residence which might otherwise be a home but which 
has been permitted to become a place of common resort. To be 
a place of common resort the place need not be open to or fre- 
quented by the general public. 

§ 16. Person. 

The act provides that' the word "person," as used in the act, 
shall be construed to embrace all natural persons, firms, corpo- 
rations, combinations and associations of every kind. 41 Of 
course, this definition cannot be given full force when applied to 
the word "person" in all provisions of the act, especially in the 
provisions relating to punishment by confinement in jail or by 
sentence to work on the public roads, in which case the word 
person must be defined as a natural person. This definition 
should however, be borne carefully in mind in the reading of 
any section of the act. 

§ 17. Intoxication. 

Any person who has drunk enough ardent spirits to so affect 
his manner, disposition, speech, muscular movements, general 
appearance or behavior, as to be apparent to observation, shall 
be deemed, for the purposes of the act, to be intoxicated. 42 

§18. Intemperate Person, and Person Addicted to Narcotic 

Drugs. 

Any person who shall continue to use ardent spirits as a bev- 
erage during the period of one year, so as to produce intoxica- 

41. § 2. 42. § 49. 



DEFINITIONS. 21 

tion from time to time, shall be deemed a person of intemperate 
habits within the meaning of the act. 43 

Persons Addicted to Use of Narcotic Drugs. — Throughout the 
act and in connection with persons of intemperate habits, persons 
addicted to the use of narcotic drugs are mentioned, but such 
persons are not defined. 

§ 19. Commissioner of Prohibition. 

The commissioner of prohibition is an officer of the state 
elected by the general assembly for a term of four years, and 
head of the department of prohibition. The act provides that 
whenever the word "commissioner" is used it shall mean the 
commissioner of prohibition. 44 The deputies and inspectors are 
officers appointed by the commissioner to assist in the enforce- 
ment of the act. 45 

§ 20. Carrikr. 

It would seem that under the act a carrier is to be construed to 
mean any transportation company. 46 The provision relating to 
keeping books reads, "all railroad, steamboat or other boat com- 
panies, express and transportation companies." 4T The provision 
for bringing into the state a quart of whiskey, etc., a month reads 
that "no person or firm, and no corporation other than corpora- 
tions authorized by the laws of this state to engage in the trans- 
portation of merchandise, as common carriers, shall bring into 
this state," etc. This must be construed to mean a public and 
not a private carrier. 48 The provision relating to unlawful drink- 
ing reads, "in any railroad station, or at any boat landing, or in 
any day coach or pullman car or any passenger train, or in any 
passenger boat, or in any street car, hack, jitney, or other public 
conveyance or automobile, or in any street, or alley, highway or 
in any other public place." 49 



43. § 49. 44. § 32. 

45. § 33. 

46. § 16. See post, "Carriers," IV. 

47. § 38. Section 40 reads, "any railroad, steamboat, express com- 
pany, or transportation company of any kind." 

48. § 39. 49. § 37. 



22 the, virginia prohibition act. 

§ 21. Druggist. 
See elsewhere. 50 



§ 22. Cities and Towns, 

The words "cities and towns" are made frequent use of in 
the act, but are not defined. The Code provides : "The word 'city' 
shall be construed to mean an incorporated community, having 
within defined boundaries a population of five thousand or more, 
or any incorporated community containing less than five thou- 
sand inhabitants which had a city charter at the time of the 
adoption of the Constitution; and the word 'town' shall be con- 
strued to mean an incorporated community not having a city 
charter at the time of adoption of the Constitution, containing 
within defined boundaries a population of less than five thousand. 
The word 'council' shall include any body, or bodies, authorized 
to make ordinances for the government of a city or town." 51 

§ 23. Other Definitions. 
For further definitions, see note. 52 



50. See post, "Druggists," V. 

51. Va. Code, § 5. 

52. As to "delivery," see State v. Parkel, 170 S. W. 915, 185 Mo. 
App. 70. As to "medicine," see Berner v. McHenry (Iowa), 151 N. 
W. 450. As to "tonic," see Geer Drug Co. v. R. Co. (S. C), 88 S. 
E. 448. 



II. Prohibited Acts. 

§ 24. Purchasing. 
§ 25. Selling. 
§ 26. Giving Away. 
§ 27. Dispensing. 
§ 28. Manufacturing. 
§ 29. Advertising. 
§ 30. Transporting. 

§ 31. In General. 

§ 32. Transporting into State. 

§ 32 (1) In General. 

§ 32 (2) In Baggage. 

§ 32 (3) In Wagon, Automobile, etc. 

§ 33. Transporting Out of State. 

§ 34. Grinding Malt. 

§ 35. Keeping in Possession. 

§ 36. Drinking in Public Place. 

§ 37. Soliciting and Receiving Orders. 

§ 38. Aiding in Procuring. 

§ 39. Collecting Draft to Which Bill of Lading Attached. 

§ 40. Transferring Estate. 

§ 41. Evading Law. 

§ 42. Other Prohibited Acts. 

§ 24. Purchasing. 

The general prohibitory provision in sec. 3 does not mention 
purchasing. Purchasing is, however, mentioned in sec. 4, as to 
the liability of an agent or. employee and also as to punishment 
for a second offense. But, as it is nowhere prohibited, it would 
seem that the mere act of purchasing ardent spirits is not unlaw- 
ful. Nothing in the act shall foe construed as prohibiting any 
person from purchasing ardent spirits contrary to the provisions 
of the act, when acting as the agent of the authorities charged 
with the enforcement of prohibition laws in the detection and 
conviction of violaters of said laws. 1 



71. 

[23] 



24 th£ virginia prohibition act. 

§ 25. Setting. 

Section 3 expressly provides that it shall be unlawful for any 
person in the state to sell or keep, store, offer, advertise or expose 
for sale any ardent spirits, except as in the act provided. 2 An 
intent to violate the act is not necessary. 3 A United States internal 
revenue liquor license is no protection in a prosecution for. an un- 
lawful sale. The license amounts to no more than a receipt that 
the holder has paid the federal taxes. 4 A person who orders 
ardent spirits to distribute to others is guilty of making a sale. 5 
The unlawful act may be committed by an agent 6 or employee. 7 

§ 26. Giving Away. 

The general provision in sec. '3 makes it unlawful for any 
person in the state to give away ardent spirits, except as pro- 
vided in the act. The exception is found in sec. 61, which pro- 
vides that nothing in the act shall prevent one in his own home 
from there giving to another ardent spirits, when the quantity of 
such ardent spirits does not exceed the quantity allowed by the act 
to be kept in the home and when such gift is in nowise a shift or 
device to evade the provisions of the act; but it is provided that 
the word "home" shall not be construed to mean a club, fra- 
ternity house, lodge room or rooms, place of common resort or 
room of a guest in a hotel or boarding house. The provision that 
wineries may store wine to be transported out of the state, con- 
tains the further provision that such wines shall not t>e given 
away in the state. 8 

By Transient Guest. — While the act makes it lawful for a 
transient guest to carry in his baggage for the use of himself or 



2. See Harvey v. Missouri Athletic Club, 170 S. W. 904, 261 Mo. 
576, L. R. A. 1915C, 876. A loan is not a sale. Jones v. State, 66 So. 
987, L. R. A. 1915C, 648. 

3. Bracey v. Commonwealth, 89 S. E. 144. 

4. Chas. M. Pfeifer & Co. v. Love's Drug Store, 88 S. E. 343. 

5. Arrington v. State (Ala.), 69 So. 385. 

6. Cashin v. State, 88 S. E. 996. 

7. § 4; Rash v. State, 69 So. 239. 

8. § 62. 



PROHIBITED ACTS. 25 

family ardent spirits not in the excess of one quart, it is also 
provided that such ardent spirits are not to be given away by such 
guest during his stay in a hotel or boarding house. 9 

Giving to Infant or Intemperate. — It is unlawful for any per- 
son to give ardent spirits to any person of intemperate habits or 
addicted to the use of any narcotic drug or for any person, ex- 
cept a parent or guardian, to give any ardent spirits to a minor, 
except on the prescription of a physician, or to send a minor or 
a female to obtain ardent spirits. 10 Under this provision it is 
not unlawful to give to a female, whether or not v the head of a 
family. It would seem that the words, "except on the prescrip- 
tion of a physician," qualify the prohibition against giving to 
intemperates and persons addicted to the use of narcotics as 
well as against giving to infants. 

Giving to Evade Law. — The giving away of ardent spirits to 
evade the provisions of the act is unlawful and punishable as 
unlawful selling. 11 The provision making it lawful to give away 
ardent spirits in one's own home makes such act unlawful when 
it is a shift or device to evade the provisions of the act. 12 

§ 27. Dispensing. 
It is unlawful to dispense ardent spirits. 13 

§ 28. Manufacturing. 

The general provision of sec. 3 makes it unlawful to manufac- 
ture ardent spirits, except as provided in the act. 14 This is a con- 
stitutional exercise of the police power. 15 

Flavoring Extracts, Preparations and Medicines. — The manu- 
facturers of flavoring extracts, or of toilet, medicinal, antiseptic 
preparations or solutions, patent or proprietary medicines or 
preparations permitted to be manufactured by the act shall be per- 



9. § 61. 10. § 41. 

11. § 18. 12. § 61. 

13. § 3. As to soft drinks, see post, "Soft Drinks," § 48. 

14. See post, "Grinding Malt," § 34.. 

15. Gherna v. State (Ariz.), 146 Pac. 494. 



26 TH^ VIRGINIA PROHIBITION ACT. 

mitted to purchase and to store ardent spirits or alcohol neces- 
sary for the manufacture of said articles, but not to be sold or 
given away, provided that such manufacturer must secure a li- 
cense from the court under the same conditions as provided in 
the act for the granting of a license to sell ardent spirits to drug- 
gists, and provided that said manufacturers shall make the 
monthly report as is required of druggists by the act. 16 

Jamaifa Ginger. — Nothing in the act shall be construed to pre- 
vent the manufacture and transportation for sale outside of the 
state of the extract, essence or tincture of Jamaica ginger into 
territory where the same may be legally sold. 17 

Wine, Cider and Vinegar. — See elsewhere. 18 

Grain, Fruit and Ethyl Alcohol. — The court may in its discre- 
tion issue to any person, a qualified voter of the state and of 
good moral character, a license to manufacture pure fruit, ethyl, 
and pure grain alcohol to be sold only to licensed druggists and 
to manufacturers of preparations, the manufacture and sale of 
which are permitted by the act, and not to be sold for transpor- 
tation out of the state, and a license to wholesale druggists only 
to sell pure grain, ethyl, and fruit alcohol, to any druggist, or 
other person for scientific, pharmaceutical and mechanical pur- 
poses, or wine for sacramental purposes for use by religious 
bodies under the provisions of sec. 9 of the act ; and pure grain, 
ethyl, and fruit alcohol, pure whiskey, pure brandy, and wine 
for sacramental purposes to retail druggists in Virginia only, li- 
censed under the act, and pure grain, ethyl or fruit alcohol to re- 
tail druggists outside of the state of Virginia, where the sale 
thereof is permitted by law; provided that any citizen may ap- 
pear personally or by counsel in opposition to the granting of 
any license herein provided for. 19 

Attempt to Manufacture. — It is made unlawful to actually 
manufacture ardent spirits, which may be construed not to ap- 



16. § 8. 17. § 8. 

18. See post, "Wine, Cider and Vinegar," § 46. 

19. § 14. 



PROHIBITED ACTS. 27 

ply to an attempt to manufacture. It has been so held in Ala- 
bama, 20 but, in Georgia, the accused was held guilty where the 
evidence- showed that he had done more than make mere prepara- 
tion for the commission of the crime, and that he was guilty of 
overt acts in furtherance of his attempt to manufacture intoxi- 
cating liquors. 21 

Persons Liable. — Any person who authorizes or assists in the 
manufacture of ardent spirits is guilty of violation of the act. 22 
But a child aiding his father to make whiskey has been held to not 
be engaged in the manufacture thereof. Blackstone v. Life Ins. 
Co. (Tex.), 174 S. W. 821. 

§ 29. Advertising. 

Section 19 of the act makes it unlawful to advertise ardent 
spirits. This section is comprehensive and probably embraces all 
modes of advertising by writing or symbol. It is, however, rea- 
sonable and not likely to be violated innocently. 

Constitutionality of Provision. — This provision is undoubtedly 
constitutional. The Alabama Anti-Advertising act has been held 
constitutional in that state and there were a number of objec- 
tions raised to it which can not be raised to the provisions of 
sec. 19. The court said : "The advertisements forbidden by this 
law are in reality but solicitations for business, and this state, 
possessing the unquestioned authority under its police power to 
prevent or regulate the sale of liquors within its borders, has also 
the authority, under the same police power, to prevent or regulate 
the carrying on of the accessory business of soliciting orders within 
the state. We therefore conclude that the anti-advertising liquor 
law here under review does not contravene any of the provisions 
of the state and federal constitutions, is a proper exercise of 
the police power of the state, and is valid and now effective 
throughout the entire state." 23 



20. Mixon v. State, 70 So. 949. 

21. Terry v. State (Ga. App.), 89 S. E. 378. 

22. See White v. State, 89 S. E. 175. 

23. State v. Delaye (Ala.), 68 So. 993, L. R. A. 195E, 640. 



28 THE VIRGINIA PROHIBITION ACT. 

As the state has authority under its police power to regulate 
and prohibit the sale of ardent spirits., and as contracts relating 
to such sales are subject to such power, the Alabama act pro- 
hibiting newspapers and magazines in the state from advertising 
for the sale of ardent spirits, was held not to work an impair- 
ment of contracts, although publishers already had contracts for 
the publication of liquor advertisements; the contracts being 
held also subject to the police power. 24 It was also held that 
the act was not a regulation of interstate commerce. The rea- 
soning of the court is set out in the following quotation: 
"There can be no question, however, that when the newspapers 
are received by the defendant from without the state, either by 
mail, or in a bundle, by express or freight, upon the breaking of 
the bundle and placing them upon the news stand for sale, they 
would become commingled with the mass of property in this 
state and would be subject to its police laws; and that such a 
single newspaper or periodical sold would not be an original 
package within the meaning of the law as stated in the decisions 
of the United States Supreme Court, in the cases of Purity Ex. 
& T. Co. v. Lynch, 226 U. S. 192, 33 Sup. Ct. 44. ?7 L. Ed. 184, 
and Austin v. Tenn.. 179 U. S. 343, 21 Sup. Ct. 132, 45 L. Ed. 
224. 25 

This provision is not void because not mentioned in the title 
of the act and is sufficiently germane to the other provisions of 
the act so as not to violate the constitutional requirement of 
singleness of subject matter. 26 

What May Xot Be Advertised. — It shall be unlawful to ad- 
vertise ardent spirits, or to advertise the manufacture, sale, 
or furnishing of the same, or the person from whom, or the firm 
or corporation from which, or the place where, or the price at 
which, or the method by which the same or any of them may be 
obtained. 

Place of Advertising. — It is unlawful to advertise upon any 



24. Advertising Co. V. State (Ala.), 69 So. 501. 

25. State v. Delaye (Ala.), 63 So. 993. 

26. See Advertising Co. v. State (Ala.), 69 So. 501. 



PROHIBITED ACTS. 29 

street car, railroad car or other vehicle of transportation, or any 
public place or resort, or upon any sign or billboard, within the 
state. The Code provides that no liquor signs shall be displayed 
on any buildings in which license to sell liquor is not enforced, 
provided that this shall not apply to United States bonded ware- 
houses. 26a 

Permitting Advertising on Premises— It is unlawful to per- 
mit any sign or billboard containing an advertisement of ardent 
spirits to remain upon one's premises. 

Manner of Advertising. — The advertising may be by circular, 
poster, price list, newspaper, periodical or otherwise. It is fur- 
ther provided that any advertisement or notice containing the 
picture of a brewery, distillery, bottle, keg, barrel, or box, or 
other receptacle represented as containing ardent spirits, or de- 
signed to serve as an advertisement thereof, shall be within the 
inhibition of the act. 

Publishing. — The publishing of any written or printed matter, 
other than newspapers and periodicals published without the 
state for which an obligation has been incurred or money paid, 
in which appears an advertisement of ardent spirits, is forbidden. 
It is further provided that it is unlawful for any. newspaper or 
periodical published in the state to print in its columns statements 
concerning the liquor traffic, for which the newspaper or periodi- 
cal receives compensation of any kind, without printing at the 
beginning and at the close of such statements in type of the 
same size used in the body of the article the following statement : 
"Printed as paid advertising." 

Circulating. — It is unlawful to circulate any written or printed 
matter, other than newspapers and periodicals published beyond 
the confines of the state for which an obligation has been in- 
curred or money paid, in which any advertisement of ardent 
spirits shall appear; but it is provided that nothing in the act shall 
be construed as prohibiting any person from giving away without 
any compensation therefor any paper or magazine which he has re- 



26a. 3 Va. Code. Page 782. 



30 THE: VIRGINIA PROHIBITION ACT. 

ceived by mail, or which he has brought into the state in person, 
provided that such gift, shall not be a subterfuge or device, or 
a violation of the provisions of the act, forbidding the circulation 
of newspapers, periodicals, or other written or printed matter 
containing any advertisement of ardent spirits. The newspapers 
and periodicals for which an obligation has been incurred or 
money paid undoubtedly embrace all publications circulated to 
subscribers who have paid or incurred an obligation therefor, 
either by subscriptions entered into directly with the publishers 
or indirectly through news agencies. It would seem also that 
a news boy who has paid for or incurred obligations for news- 
papers and magazines may sell them. The payment or liability 
of the obligation by the news boy, or the agency through which 
he sells is sufficient to satisfy the provision. The apparent pur- 
pose of the act is to prevent the circulation of such publications 
only as are not the subject of purchase and for which an obli- 
gation need not be incurred, but which are circulated free of 
charge. The provision in regard to publication in local news- 
papers and periodicals of statements concerning traffic in ardent 
spirits, which requires a statement that the publication is printed 
as paid advertising, does not apply to circulating. If the news- 
paper or periodical violates the law it is liable, but a person dis- 
tributing the same is not. It is also made unlawful to circulate 
any price list, order blank or other matter for the purpose of 
inducing or securing orders for such ardent spirits no matter 
where located. 

By Manufacturer of Drugs. — Manufacturers and wholesale 
druggists licensed under the act are permitted to send price lists 
to those to whom they are permitted to sell ardent spirits under 
the act. This permits advertising by price list only, and then 
only to wholesale and retail druggists in the state. Certain manu- 
facturers may manufacture ardent spirits, for instance, Jamaica 
ginger, for shipment and sale out of the state, and there is no 
restriction upon their right to advertise in another state. 

Enforcement of Provision. — The first mode of enforcing the 
provision against advertising is by injunction. ' It is provided 
that : "When any violation of any of the provisions of this sec- 



PROHIBITED ACTS. 31 

lion of the act shall have occurred, the continuation and repeti- 
tion of the unlawful act or any of like kind by the offending 
person, firm or corporation, may be prevented iby a writ of in- 
junction issued by a court of equity or 'by the judge thereof in 
vacation, upon a bill filed in the name of the State of Virginia 
by the attorney general, or by any attorney for the commonwealth 
in any county or city, or by any citizen or citizens of the county 
or city in which the offense has been committed ; and all rules of 
evidence, practice and procedure that pertain to courts of equity 
generally in this state may be invoked and applied, as well as 
the rules and practice prescribed for bills in equity to abate nui- 
sances, as far as the same are applicable. All persons, whether 
agents, servants or officers of corporations, or agents or servants 
of individuals aiding or abetting in the commission of the of- 
fense, may be made parties defendant to such bills." 27 The of- 
fenders may -be prosecuted against criminally for unlawful ad- 
vertising, and punished according to the terms of the act, which 
are : "Any violation of any provision of this section of the act 
shall be punishable by a fine of not less than fifty nor more than 
five hundred dollars ; to which may be added, in the discretion of 
the court or judge trying the case, imprisonment in jail for not 
more than six months ; a second offense shall be punishable by 
^l fine of not less than one hundred dollars nor more than five 
hundred dollars, and by imprisonment in jail for not less than 
two nor more than six months." As a third mode of enforcing 
the provision it is provided that any sheriff, constable or police 
officer is authorized to remove any advertisement of ardent spirits 
from any sign, billboard, or other public place when it comes to 
his notice, and shall do so upon demand of any citizen. 

If by public place is meant public property, such as a highway 
or bridge, the officer need not obtain a warrant ; but, if the officer 
has to enter upon and injure private property, although a public 
place in the sense of a theater or hotel, a warrant is required. 

§ 30. Transporting — § 31. In General. 
The general provision of sec. 3 makes it unlawful to transport 



27. As to sufficiency of bill, see State v. Delaye (Ala.), 68 So. 993. 



32 THE VIRGINIA PROHIBITION ACT. 

ardent spirits, except as provided in the act. 28 This is a general 
provision against transporting ardent spirits, and in order for 
such act to be lawful it must be within some other provision 
which is an exception to this provision. The West Virginia stat- 
ute does not expressly or impliedly inhibit common carriers from 
transportation of passengers carrying with them, in their own 
personal custody, care, and control, packages of intoxicating liq- 
uors. 29 While the provisions of the act relating to transportation 
are probably constitutional, their constitutionality may be ques- 
tioned by some because the title mentions "transportation for 
sale" only. 

Transporting from Station to Home. — The act provides that it 
shall be lawful for any person to carry from the depot of a com- 
mon carrier to his own home any ardent spirits which he has re- 
ceived from such common carrier in accordance with the provi- 
sions of the act, or to carry from the depot any ardent spirits 
which he has received from a common carrier upon the written 
authority of the consignee as provided for in the act, such ardent 
spirits to be delivered at the home of the consignee; or to carry 
any ardent spirits which have been delivered to him by a regis- 
tered to him by a registered pharmacist upon the prescription of 
a physician as provided in the act. 30 % 

§ 32. Transporting into State — § 32 (1) In General. 

Section 39 of the act relating to transportation into the state is 
here set out in full. "No person or firm, and no corporation 
other than corporations authorized by the laws of this State to 
engage in the transportation of merchandise, as common carriers, 
shall bring into this State, for use in this State, from any point 
without this State, or transport from one point to another in this 
State, or from any point in this State to any point without this 



28. The state can under its police power prohibit the delivery of 
intoxicating liquors by a carrier to its citizens. State of West Vir- 
ginia v. Adams Express Co., 219 F. 794, 135 C. C. A. 464, reversing 
order (D. C.) 219F 331. 

29. State v. B. & O. R. Co. (W. Va.), 89 S. E. 288. 

30. § 65. 



PROHIBITED ACTS. 33 

State, any ardent spirits, and no common carrier shall, except as 
hereinafter provided, bring into this State, from any point with- 
out this -State, or transport from one point to another within 
the State, any ardent spirits except as follows : One quart of 
distilled liquors, or three gallons of beer, or one gallon of wine, 
may be "brought to any person not a student at a university, col- 
lege or any other school in this State, nor a minor nor a female 
(not the head of a family), in this State, for his own use, and 
not to be used contrary to the provisions of this act; provided 
every container in which such ardent spirits, wine or beer are 
carried shall, except as hereinafter provided, have a card not less 
than six by twelve inches, upon which shall be stated in letters 
not less than one inch high, the kind and quantity of ardent spirits, 
wine or beer that it contains." 31 

Such carriers are compellable to transport ardent spirits as 
permitted by the act. They are not bound at their peril to know 
that the shipment is lawful, but are only required to act in good 
faith. 32 The offences of transporting unlawful quantities and 
of transporting in unlawful containers are separate and dis- 
tinct. 33 

§ 32 (2) In Baggage. 

It is further provided that nothing in the act shall be con- 
strued to prohibit any person travelling from one point to an- 
other within the state, or from without the state, to any point 
within the state, from carrying in his baggage for the bona fide 
use of himself or his family, and not as a means of evading the 
intent and meaning of the act, and not to be used contrary to the 
provisions of the act, ardent spirits not in excess of one quart, 
which bona fide baggage it shall not be necessary to label or mark, 
as provided in this act. It shall be unlawful for any person to 
bring into the state from any point without the state, whether in 



31. § 39. For an interesting case from another state, see State v. 
B. & O. R. Co. (W. Va.), 89 S. E. 288. 

32. Clark Distilling Co. v. Western Maryland Ry. Co., 219F 333. 

33. State v. Little, 88 S. E. 723. For general treatment, see post, 
"Carriers." 

—3 



■- ihz : ~:: ':;■: .-. :; ezzit: : :: 

-.: :eri.:ml :\^:.:~ :: ..:.-: -f -rimin i :■::•.:: ; : m irry ims. 
more than one qoart of ardent spirits,, and any justice of the 

:-..- ::'::c . 5- .:t :.::...: '-lire :r miy-zr :: my : ■.:-■ ;r : : ' :: 
.::::. :::.-.:. in: m: in: :mm:::r_ n en mier :.i:h :'.:■: inim: 
jiii ;a.:3t :: :e".ir"r m: ::ei zelieve ±2: my ;-n::: - ininn;; 
±:i -;.:::: ::' ±e a:: fruilL iime iiii ""imm: iire-mirm m:i: 
:erim in: -if zi^.^^r :: :e '; r : .: , v.: -i \7± iiirr. ::r :::i::::-- 
:::n n i:::ri.m:t; ::h :he ::: r.::n ::' :l:e ::: ' 

7/7 immy 7m: mm r mmm: n:: me ; :::: - :: : : mm 
nmn me mm: :: mien: ymm -mm in a :enim ::' :mmy ii; - 
7im immm:m n :: mm::y . :!::= :r: :i im iirmri mm. : im: 
n me :r:mi:m reimmr :: mnmemi : : mmiers m : 1: : :e mm- 
:.:y :s n r" em zme ..;:: :e: :: me nm m : 1 :emm ;- :::: : er- 
mine: :: mm me mm: ::' 7imille: iiymm me miim :: ' ::.: 
: - : .:::: : m : : - ::" :er: 25 ii i:e :i*c : : mnierf n ii r. :: r:e:e- 
=.:y mi: 7:e imminer :e imeie: mr - i: :: .: -:: mi: me ir- 
ien: mm- 7 : irr 7 : n i <"y: : mmner if 15 n : n: ~e~e 
mm iec 7 .: : - :f ■-:.-o:r:: :; 1 nmier 

: _ ' i .- "" m : n mm 

m : m :: : ~ : : : : 7 m : m : 
rem: - - 7 mm: :: 7-7- m i:y nmmiie :r y:7i:e :m:er 
:: itriy : mrnm : ner :r .mm:::: immme: y me : : 71 _ r - 
z .--- mm im "7 remm :: - -7;: 7m: mien: minm 1-7 'mm 
:mm: : :m : in my mm:: mm m::m:':7e :r :mer vei.i:'.e. 
:::/:•:; :: ii~ i.t »i:ii in 7 :iir nri:: m : i: -rnii :e ■ ; :v.:y 
:: ; ::i.n 1 " irmn: :: rtir:: sn:: 1: ::: r:y iu::n::'::lr :r 
-.-.:-- 7 .-.. :.r m: :: rci_c m; m: ni ir :tn: ; ; nn :' : .:r. : :i:rrt:n 
winch is being transported contrary to law." This section makes 
:\: 1'..: ■■■:-.7.:t :: 1 ynin: ::' iiiinlr: i: :yn : r 7:: m: ii :: ':- ::tl- 
r::-\ n:r:en:en:iiy :: ::her : r: :^::ri :e::i:fr :: rri::r5 :: 1 
specific sohject. It is, therefore, anlawfnl to bring any quantity 
"imve: :: iritn: ^;n.: ; .:.:: '.:.- nm n my " v:;:\ L.:::n::- 
: . i 7 7 : : 

" "*.: ••: - — 7/7 -.:-: :..:•: in m:tr 1 "irrmn -■"-::.: i: ii 
ii:i :.::;:: :::m .::::. :.n .". 1 n: rtai:r: :■: r .:;:::: :hi: irien: 

1-4. ■ ;■ .-.f :: itir:- ir_: i_-re = :. =c= ;-:s: 



PROHIBITED ACTS. 35 

spirits are being transported. As the officer is required to have 
a reason to suspect that the law is being violated, he must have 
some grounds for his suspicion. His grounds must be reason- 
able. What is a reasonable ground can not be satisfactorily de- 
fined. It would seem that a reasonable ground may consist in 
any suspicious appearance or circumstance connected with the 
wagon, automobile, etc., or the persons traveling therein, such 
as concealment, unusual packages or baggage, conduct and ap- 
pearance of persons traveling, and frequency, reoccurrance and 
destination of travel. The officer may act upon actual knowledge 
or reliable information. But he can not have a reasonable ground 
of suspicion upon the mere fact that a wagon or automobile en- 
ters the state unaccompanied by suspicious circumstances. 

Seizure, Arrest and Bond. — It is provided that, whenever any 
ardent spirits which are being illegally transported, or are being 
transported for an illegal use, shall be seized by an officer of the 
state, he shall also take possession of the vehicle and team, or au- 
tomobile, boat or any other conveyance other than a conveyance 
owned and used by a railroad, steamboat or express company, 
in which such liquor shall be found, and shall also arrest any 
person in charge of such team or vehicle, and report the seizure 
and arrest to the attorney for the commonwealth of the county 
or city in which such seizure and arrest shall be made, and to the 
commissioner in writing: provided, that the accused may give 
bond, approved by the court, or judge in vacation, or the bail 
commissioner, for his appearance in court to answer to the charge 
against him, and to pay the fine and costs if convicted, in which 
event the vehicle, team or automobile shall be released. 

Prosecution and Punishment. — Upon being notified by the of- 
ficer of the seizure and arrest, the attorney for the commonwealth 
shall at once proceed against the person arrested under the pro- 
visions of the act, who, upon conviction, shall be deemed guilty 
of a misdemeanor and shall be fined not less than fifty nor more 
than five hundred dollars, and confined in jail not less than one 
nor more than six months. 

Sale of Wagon, Automobile, etc. — '"'The court wherein the con- 
viction is made shall, unless good cause to the contrary is shown 



36 THE VIRGINIA PROHIBITION ACT. 

by the owner, who must clearly prove that he was ignorant of the 
purposes for which his team or vehicle or automobile was being 
used, order a sale by public auction of the property seized, and 
the officer making the sale, after deducting the expense of keep- 
ing the animals and vehicles or automobile, the fee for seizure 
and the cost of sale shall pay the proceeds to the officer author- 
ized to receive fines. In the event that the proceeds of the sale 
shall exceed the amount of the fine and of the costs above men- 
tioned, the balance remaining after the fine and costs shall have 
been paid shall be paid to the owner of the vehicle, team or auto- 
mobile which has been sold. If. however, no one shall be found 
in charge of the team, vehicle or automobile, the taking of the 
same shall be advertised in some newspaper published in the city 
or county, or if there be no newspaper published in such city or 
county, in a newspaper having a circulation in the county, once 
a week for three weeks, and by handbills posted near the place 
of seizure, and if no claimant shall appear within ten days after 
the last publication of the advertisement, the property shall be 
sold and the proceeds, after deducting the expenses and the costs 
of advertising, shall be paid into the treasury of the State." 35 

§ 33. T RAX SPORTING OUT OF STATE. 

There are several provisions in the act in regard to transporta- 
tion of ardent spirits to points outside of the state : (1) that no 
person or firm, and no corporation other than corporations au- 
thorized by the laws of the state to engage in the transportation 
of merchandise as common carriers shall transport ardent spirits 
from any point in the state to any point without the state ; 36 
2 a licensed manufacturer of grain, fruit or ethyl alcohol to 
be sold to druggists and manufacturers of preparations, is for- 
bidden to manufacture such alcohol for transportation outside of 
the state: 3T (3) the act, in so far as it affects the transportation 
out of the state, shall not apply to ardent spirits manufactured 
prior to January 1. 1916, and in transit from a United States 
bonded warehouse to points outside of the state where ardent 



35. § 57. 36. § 39. 

37. § 14. 



PROHIBITED ACTS. 37 

spirits may be legally sold or stored ; 3S (4) the officers in charge 
of any dispensary, selling ardent spirits under the authority of 
the state,- are granted the right to transport out of the state to 
a point where ardent spirits can be legally sold, any ardent spirits 
which are the property of said dispensary, provided that no such 
shipment can be made after November first, nineteen hundred 
and sixteen; 39 (5) wineries may transport out of the state and 
into territory where wine may be legally sold, wines that have 
already been manufactured or were at the date of the passage 
of the act in process of manufacture; and (6) nothing in the sec- 
tion shall be construed to prevent the manufacture and trans- 
portation for sale outside of the state of the extract, essence, or 
tincture of Jamaica ginger into territory where the same may be 
legally sold. 40 

These various provisions are undoubtedly constitutional. They 
are not regulations of interstate commerce. The fact that an ar- 
ticle is manufactured for exportation to another state or to 
foreign nations, or that the owner or manufacturer intends to 
export the same, does not of itself make it an article of interstate, 
or foreign commerce within the protection of the commerce 
clause of the constitution, as the intent of the manufacturer or 
owner can not determine the time when the article of product 
passes from the control of the state and belongs to commerce. 41 
The provision that it shall be lawful for any person travelling 
from one point to another within the state or from a point with- 
out the state to a point within the state to carry in his baggage 
for the bona fide use of himself or family, ardent spirits not in 
excess of one quart, does not mention to a traveller from a point 
within to a point without the state. As such act is not excepted 
from the provision that it shall be unlawful for any person not a 
common carrier to transport ardent spirits from a point within 
to a point without the state, such act is undoubtedly unlawful. 42 



38. § 3. 

39. § 3. As to Byrd Law, see 3 Va. Code, p. 780. 

40. § 8. 

41. Coe v. Errol, 116 U. S. 517, 29 L. Ed. 715. 

42. § 39. 



?S :z: T7":r: ji:h:::t::: :: 



: . :" " -7 : : r :.. :t :?.::::. 7 : — rmtvtr mrzt :: :r - ..- : :; .7 

lit: in ±t niizufirrrrt ::' :r:tn: «:irf:i m: ±t irit 

;:::: :/.:.. _t ::•:: ::v :>tri:r rn: .: u r ruii: :: .- r: : :i: v. ■;.-. 

ruii: .: r:: :: :«t .-ft: in \: .::.::. :•: : r- i~ r; .It: 

::: .5:::; >'riii :>: : :.; :: .:.; "-.".~uf2.rr.1rtr :f :rre rr lir :: 

irr 7 : line:: r:tnir>i :': rr_in. i.i:r_rt 5.:: : :":! ""it: 

i::-- : 



: t .:-'-.- :'.:. ::r 2 

-: -t.. -77; : - r.: 

r. t i- .-- :r ii™ 

- : r 1:: iz : r: :.:r. 



"7:. : : r ; :.7 iz : _ : :t : r :tr :r : : : :r_t ::.:.- /r- 

.;:.._-:: ; :,T7 : 7: : " : ' : "7 _ • : : r 

rtiim . : :: :\--: :._;:.:" mr, _ r.± 

-.us: - rtii :: rrr.ir 1 rzi: :: :5 :. --.: .;:.:.:: :: rr_ir.u- 

:::::r7 nr»:«:r :r it!" iritr: - ::r ::= :-t:i:f: r.rr: 1:: = :iu 
:'. : : : 7 :.:i.r:i : ; ::■: z \ - : . . : ii : "7 tn:t : ; :i:e . ■ ; - : : 
the word ~seHf (2) it shall be unlawful to keep, store, offer, 
7 : : : : f 7 : - :. : 7 ~ ; 7 : • ri :i 

": 7 .::.:.:.. :: ~"t 11; :r iiicerit intu: -rims in: - :: 
f : ..:.: :-:-.- :ritn= ::r ; r ;. . : ir_ : r: : . t :\r r:::: s:im.f tx- 
:t; : as in : : : pforided. There can he no doubt that it is nn- 
'.1— fui :: ::::. :: r::; Lritn: - - • .7- " ; -t:: ::./ 

in ±t rj.i-t~r.trr :: - . : 7 ::r rrt - lit : • : 7 in: :utrt- 
:::7 rrt ;r: -~i::r. trcrtr: - itrtrr : '.\-.\ i:-tf r:: 
Trus memi rri: rrt r.rr: riii ii : ii: :ri:r :: :u- : 



§ 3. See 3 Vsl Code, p. TOOL 



PROHIBITED ACTS. 39 

of the act, and that the act does not have to be looked to for the 
granting of such right, but merely for restrictions thereon. In 
other words, a person has a right to keep ardent spirits, except 
for purposes of sale, unless the right is denied him by some other 
provision of the act. 45 While the title of an act does not control 
the enacting clause it may be referred to for construction in cases 
of doubt. The title of the act reads "keeping for sale," but 
makes no mention of keeping for use. 

Section 4 provides that any person who* shall violate any of the 
provisions of sec. 3 of the act shall be deemed guilty of a misde- 
meanor for the first offense and of a felony for the second offense, 
provided that the having in possession of ardent spirits for per- 
sonal use shall in no case be deemed a felony, but the burden of 
proof that such ardent spirits are for personal use shall be upon 
the defendant. This section does not attempt to make any act 
unlawful which is not made so in sec. 3, except the acts of agents 
of certain persons, but simply provides the punishment for such 
unlawful acts and that the burden of proof of personal use shall 
be upon the defendant. This construction would be perfectly 
clear were it not for the provision that the having in possession 
of ardent spirits for personal use shall in no case be deemed a 
felony. By implication this could be read to mean, such act may 
be deemed a misdemeanor, by construing the provision to refer 
only to the punishment for a second or subsequent offense. 

Section 61 provides that the act shall not prevent one, in his 
own home, from having ardent spirits where the quantity of such 
spirits does not exceed the quantity allowed by the act. While 
this provision expresslv refers to the quantity of ardent spirits,' 
it is the quantity allowed by the act. But the act makes no allow- 
ance as to quantity, other than providing that the possession of 
more than a certain quantity shall place the burden of proof upon 
the accused, which does not take away the right to keep in pos- 
session. It invades such right, but does not defeat it. As pointed 
out above, the right to keep ardent spirits exists independently 
of the act, and is therein merely restricted. What the legislature 
means, is that intoxicating liquors can be S0 ! kept, regardless of 



45. 



40 THE VIRGINIA PROHIBITION ACT. 

quantity but that the person so keeping them shall have the bur- 
den of proof that such keeping is not for sale. This is substan- 
tially what is expressly stated in sec. 65. 46 

Quantity That May Be Kept. — Section 65 provides that the 
possession by any person of any ardent spirits, at any place other 
than his home, except as provided in the act, and the possession 
in his home of more than one gallon of distilled liquor, one gal- 
lon of wine or three gallons of beer, or other malt liquor, at any 
one time, shall, in any proceeding or prosecution under the act, 
be prima facie evidence that such person possesses such distilled 
liquors, wine and malt liquor for the purpose of sale. 47 Under 
the express provisions ot the act a person may keep in his pos- 
session as much as one gallon of distilled liquor, one gallon of 
wine or three gallons of beer, or other malt liquor. One ques- 
tion may be here asked, does "or" mean "and?" This must be 
answered in the negative, for two reasons, ( 1 ) the act uses the 
word "or" nd there is nothing to show it has any other than its 
primary meaning, 48 and (2) by the use of the words "as much 
as" and by the repetition of the words "one," the act shows a 
clear intention to restrict the possession to one of the several 
kinds enumerated. Any one kind can be kept in homes in small 
quantity. The consumer, of course, can select which kind he 
may have in his possession. Can a person keep more than one 
gallon of distilled liquor, etc? The act does not declare the hav- 
ing in possession of ardent spirits in excess of one gallon of dis- 
tilled liquor, one gallon of wine or three gallons of beer to be 
unlawful. In other words the possession of ardent spirits in any 
quantity whatever, if for personal use, is not of itself a crime. 
But the right of the person having in his possession more than 
the stated quantity is qualified by (1) the provision that, if 
seized under a search warrant, the ardent spirits are to be de- 
stroyed, and (2) that in a prosecution for any violation of the 



46. See post, "Burden of Proof and Prima Facie Evidence," § 17. 

47. § 65. 

48. But see. in § 8, the word "or" in "wine or cider" must necessarily 
be read "and." 



PROHIBITED ACTS. 41 

act such person shall have the burden of proof that the ardent 
spirits are for personal use. 49 

Right as Affected by Time Acquired. — There may be some 
question as to the power of the legislature to declare that a per- 
son can not keep ardent spirits which he purchased before the 
passage of the act, but it would seem within its police power. 50 

Purpose for Which Kept. — Ardent spirits can be kept for per- 
sonal use only; keeping to sell, dispense or give away except 
to give away in the home, is unlawful. 51 When kept in an un- 
lawful place the purpose of keeping is immaterial. 52 

As Device to Violate Act. — The keeping or storing of ardent 
spirits as a shift or device to evade the provisions of the act, is 
deemed unlawful and punishable as unlawful selling. 53 

In Home. — Nothing in the act shall prevent one, in his own 
home, from having ardent spirits, when the quantity of such 
spirits shall not exceed the quantity allowed by the act, to be 
kept in his home; but the word "home," as used herein, shall be 
the permanent residence of the person and his family, and shall 
not be construed to include a club, fraternity house, lodge room 
or rooms, or place of common resort, or room of a guest in a 
hotel or boarding house. 54 

In Bonded Warehouse. — The act insofar as it affects the stor- 
ing or transportation out of the state, shall not apply to ardent 
spirits manufactured prior to January first, nineteen hundred and 
sixteen, and stored in United States bonded warehouses in the 
custody of the United States collector of internal revenue, or, 
when the tax is paid, are in transit from such warehouses to 
points outside of the state where such ardent spirits may be 
legally sold or stored. 55 



50. See ante, "Personal Liberty and Private Property," § 6. 

51. See §§ 3, 39. As to keeping for sale, see Andrews v. City of 
Atlanta. 83 S. E. 436, 15 Ga. App. 389. 

52. Griffin v. State, 83 S. E. 871, 15 Ga. App. 552. 

53. § 18. 54. § 61. 

55. § 3. This section of the act has been here changed for clearness. 



42 THE VIRGINIA PROHIBITION ACT. 

In Winery. — Nothing in the act shall prevent existing win- 
eries from keeping and storing until Jaunary first, nineteen hun- 
dred and eighteen, on their premises such wines as have already 
been manufactured, or are at the date of the passage of the act 
in process of manufacture., but such wines shall not be sold, 
given away or dispensed in the state, but may be shipped out of 
the state into territory where they may be legally sold. 56 

Cider and Wine. — See elsewhere. 57 

Possession, by Minor. — It shall be a misdemeanor for any 
minor to have ardent spirits in his possession, whether belong- 
ing to himself or another, and upon conviction, he shall be fined 
not less than ten nor more than five hundred dollars, and in the 
discretion of the court, he may be sentenced to jail or to a re- 
formatory, for not less than one nor more than six months. 5S If 
it shall appear in any prosecution that minor is acting as the 
agent of another person in keeping ardent spirits in his posses- 
sion, such person shall be deemed guilty of a misdemeanor. 59 

Possession by Female. — It is unlawful for any female, except 
the head of a family, to have in her possession any ardent spirits, 
and in case she is the head of a family, possession is lawful only 
where for her own use in a bona fide home. 60 

Possession by Intemperate Persons. — The act does not pro- 
vide that it shall be unlawful for persons of intemporate habits 
or addicted to the use of nacrotic drugs to have ardent spirits in 
their possession, but simply makes it unlawful to give or de- 
liver ardent spirits to such persons. 61 

Possession by Person Travelling. — A person travelling may 
carry in his baggage for the bona fide use of himself or family, 
ardent spirits not in excess of one quart. 62 Any transient guest 
may carry into a hotel or boarding house in his baggage for the 



56. § 62. 

57. See ante, "Manufacturing," § 28. 

58. § 41. 60. § 42. 

59. § 41. 61. See § 41. 
62. § 39. See post, "Transporting." § 30. 



PROHIBITED ACTS. 43 

bona fide use of himself or family ardent spirits not in excess of 
one quart, the same not to be opened or used or given away by 
such guest during his stay in the hotel or boarding house. 63 A 
person may bring into the state from any point without the state 
on his person, in his baggage or otherwise not more than one 
quart of ardent spirits within a period of thirty days. 64 

Possession by Druggist. — See elsewhere. 65 

Possession by Hotel. — See elsewhere. 66 

Destruction of Ardent Spirits Pound in Possession. — The act 
provides that when ardent spirits shall be seized in any place, 
searched under the provisions of the act, such ardent spirits shall 
be» destroyed and the containers shall be sold or destroyed. 67 

§ 36. Drinking in Public Place. 

The act provides that any person who shall take a drink of 
ardent spirits in any railroad station, or at any boat landing, or 
in any day coach, or Pullman car, or on any passenger train, or 
in any passenger boat, or in any street car, hack, jitney, or other 
public conveyance, or automobile, or in any street, or alley, high- 
way or in any other public place, shall be guilty of a misdemeanor 
and upon conviction, shall be fined not less than ten nor more 
than one hundred dollars. 68 

§ 37. Soliciting and Receiving Orders. 

Soliciting Orders. — The act provides that it is unlawful for 
any person in the state to solioit in any way, receive orders for or 
aid in procuring ardent spirits, except as provided in the act. 69 



63. § 61. 64. § 39. 

65. See post, "Druggists," V. 66. See post, "Druggists," V. 

67. §§ 28, 57. See post, "By Destruction," etc., § 108. 

68. § 37. As to Byrd Law, see 3 Va. Code, p. 779. 

69. § 3. See 3 Va. Code, 782. As to soliciting under Act 1910, c. 
190, § 33, see Wiseman v. Com. (Va.), 83 S. E. 1052. As to cases from 
other states, see Cashin v. State, 88 S. E. 996; State v. Decker, 84 
S. E. 376; James Clark Distilling Co. of Cumberland, Md. v. West- 
ern Maryland Ry. Co., 219 F. 333. 



44 THE VIRGINIA PROHIBITION ACT. 

What is the offense of soliciting? Is it soliciting ardent spirits, 
for example a drink, or is it soliciting orders? The word 
"solicit," is grouped with the words "sell," "give away," "dis- 
pense," etc., and separated from the words "receive orders for or 
aid in procuring," in three ways, (1) by being so grouped, (2) 
by the comma after the word "way," and (3) by the explanatory 
words "in any way." When construed as standing independent 
of receiving orders, solicit means to seek ardent spirits and not 
a purchaser thereof. In this sense it has the same meaning as to 
solicit intercourse in seduction cases. This construction is ac- 
cording to the letter of the act and may be followed by the courts. 
Therefore, a person may well be cautious in asking another for 
a drink. 

But the act may be construed to mean soliciting orders, by 
reading it as "to solicit or receive orders." In order to do so 
there must be found such legislative intent. Where does it ap- 
pear? Reference must be had to other provisions of the act. 
There are several provisions which show that such is the legisla- 
tive intent. Sec. 21 reads, "solicit or receive, or transmit any 
order;" sec. 50, in regard to bell boys, etc., at hotels, makes it 
an offense for such bell boy, etc., to "give any information or di- 
rection" by which any guest may secure ardent spirits, but does 
not make it unlawful for such guest to solicit or ask for ardent 
spirits ; sec. 37, in regard to persons in charge of any car, boat, 
etc., is similar to sec. 50; and sec. 4, in providing that the offenses 
of purchasing, having in possession, giving away, etc., shall not 
be deemed a felony, does not mention the soliciting or asking for 
ardent spirits, and, if such is an offense, it is a felony for the 
second offense and more severely punished than the actual re- 
ceiving of ardent spirits. Such an intention can not be attributed 
to the legislature. It may be suggested that this result can be 
avoided by construing "receiving" in sec. 4 to embrace asking 
for ardent spirits and thereby reduce its punishment. But there 
is certainly a great difference between asking for a drink and re- 
ceiving one. There is every reason to think the legislature in- 
tended the soliciting of orders for ardent spirits and such is the 
reasonable construction of the section. It would seem, therefore, 
that it is not unlawful to ask for ardent spirits. 



PROHIBITED ACTS. 45 

It makes no difference that the United States Mail was used 
for the solicitation. The federal government does not protect 
those who use its mails to thwart the police regulations of a state 
made for the conservation of the welfare of its citizens. The 
use of the mail is a mere incident in carrying out the illegal act, 
and affords no more protection. 70 Where the offense is com- 
mitted by mailing circulars, intent to violate the act is not ma- 
terial. 71 While the offense may be committed through the mail, 
it must be committed by a person in the state. Therefore, a per- 
son without the state may solicit orders, and may of course use 
the mails for that purpose. But he can not do so through an 
agent in the state. 

Receiving Orders. — It is unlawful to receive orders for ardent 
spirits. 72 Receiving means more than merely coming into pos- 
session of the orders through the mail or otherwise ; it means 
receiving to be filled. In other words, it is unlawful to ac- 
cept such orders. The provision is restricted to receiving within 
the state. 

§ 38. Aiding in Procuring. 

It is unlawful to aid in the procuring of ardent spirits. 73 This 
provision is unqualified and, therefore, extends to aiding in any 
manner. Any bell boy, elevator boy, or employee of any hotel 
or place of public entertainment in this state who shall procure 
for or assist in procuring, or who shall give any information 
or direction to any guest or patron of such hotel or house of pub- 
lic or private entertainment, or other person by which such 
guest or other person may secure ardent spirits shall be deemed 
guilty of a misdemeanor, and upon conviction be fined not less 
than ten nor more than fifty dollars and be confined in jail or 
committed to the reformatory for not less than one nor more 
than six months. 74 Any person in charge of or employed in con- 
nection with any car, boat, hack, jitney, or other public convey- 



70. State v. Adams Exp. Co. (Fed.), 20 Va. Law Reg. 815. 

71. Cashin v. State, 88 S. E. 996. 

72. § 3. 73. § 3. 
74. § 50. 



46 THE VIRGINIA PROHIBITION ACT. 

ance or automobile, who shall procure for or assist in procuring, 
or who shall give any information or direction by which any per- 
son may secure ardent spirits, shall be guilty of a misdemeanor, 
and upon conviction, shall be fined not less than ten nor more 
than one hundred dollars. 74a 

§ 39. Collecting Draft to Which Bill of Lading Attached. 

It is unlawful for any bank incorporated under the laws of 
the state, or any national or private bank, or any individual, cor- 
poration, firm or association, to present, collect, or in any way 
handle any draft, bill of exchange, or order to pay money to 
which draft, bill of exchange, or order to pay money is at- 
tached a bill of lading, or order, or a receipt for any ardent spirits 
of any kind, prohibited by the laws of the state, to be manufac- 
tured or sold, or otherwise disposed of in the state, or which 
draft is enclosed with, connected with, or in any way related to, 
directly or indirectly, any bill of lading, or receipt for such ardent 
spirits in the section above mentioned, and any person, firm, cor- 
poration or bank, or banker, violating the provisions of the act, 
shall be guilty of a misdemeanor, and shall be fined not less than 
fifty nor more than one hundred dollars. 7 "' 

§ 40. Transferring Estate. 

The act provides that any person who shall transfer, alienate, 
or encumber in any manner his estate, real or personal, with in- 
tent to evade any provisions of the act, and all persons aiding and 
abetting in such evasions shall be deemed guilty of a misde- 
meanor for the first offense, and of a felony for every subsequent 
offense. 76 

§ 41. Evading Law. 

The keeping, storing, or giving away of ardent spirits, or any 
shift, or device whatever, to evade the provisions of the act, shall 
be deemed unlawful within the provisions of the act, and shall be 
punished as unlawful selling is punished. 77 The section making 



74a. § 37. 75. § 20. 

76. § 69. 

77. § 18. See State v. Compton, 146 P. 1161, 94 Kan. 642. 



PROHIBITED ACTS. 47 

it lawful to give away ardent spirits in the home expressly 
provides that such gift shall in no wise be a shift or device to 
evade the -provisions of the act. 78 

§ 42. Other Prohibited Acts. 
See elsewhere. 79 



78. § 61. 

79. As to receiving from carrier, see post, "To Whom Delivery may 
Be Made," § 52. As to false affidavit, see post, "Affidavit of Con- 
signee," § 59; "Affidavit of Purchaser," § 63. As to sending minor 
or female to obtain, see post, "Minors," § 88; "Females," § 89. 



III. Prohibited Intoxicants. 

§ 43. In General. 

§ 44. Grain, Fruit and Ethyl Alcohol. 

§ 45. Denatured and Wood Alcohol and Denatured Rum. 

§ 46. Wine, Cider and Vinegar. 

§ 47. Jamaica Ginger. 

§ 48. Soft Drinks. 

§ 49. In General. 

§ 50. License to Sell or Dispense. 

§ 43. In General. 

The purpose of the act is to prohibit the manufacture, sale, 
etc., of ardent spirits, x which include alcohol, brandy, whiskey, 
rum, gin, wine, porter, ale, beer, all malt liquors, absinthe and all 
compounds and mixtures of them. 2 

Toilet Articles. — Nothing in the act shall be construed to pre- 
vent the manufacture and sale of toilet, medicinal and antiseptic 
preparations and solutions not intended for internal human use, 
nor to be sold as beverages, and upon the outside of each bottle, 
box or package of which is printed in English conspicuously and 
legibly and clearly the quantity by volume of alcohol in such 
preparations ; 3 but it is expressly made unlawful for any person 
to sell such toilet, medicinal, antiseptic preparations or solutions 
or flavoring extracts or patent or proprietary medicines or 
preparations for beverage purposes in the guise of flavoring ex- 
tracts or medicines. 4 

Flavoring Extracts. — Nothing in the act shall be construed to 
prevent the manufacturing or keeping for sale of the food pro- 



1. §3. 

2. See ante, "Ardent Spirits," § 12. As to whisky and brandy, see 
post, "Druggists," V. As to flavoring extracts, see "Hotels." As to 
toilet articles, see "Druggists." As to alcohol bitters, see 3 Va. 
Code, p. 770. As to "Peruna," see 6 Va. Law Reg. 392. 

3. § 8. 4. § 8. 

[48] 



PROHIBITED INTOXICANTS. 49 

ducts known as flavoring extracts which shall be so manufactured 
or sold for cooking and culinary purposes only, and not to be 
sold for beverage purposes. 5 

§ 44. Grain, Fruit and Ethyl Alcohol. 

It is not lawful for druggists to purchase, store or sell ardent 
spirits, except wine for' sacramental purposes and pure fruit, 
ethyl and grain alcohol for medicinal, scientific, mechanical or 
pharmaceutical purposes, as provided in the act ; 6 but nothing in 
the act shall be construed to prevent the sale and keeping and 
storing for sale by druggists, of pure grain or fruit or ethyl al- 
cohol, and of pure whiskey and pure brandy, for mechanical, 
pharmaceutical, medicinal and scientific purposes, or of wine 
for sacramental purposes for use by religious bodies. 7 The 
provisions o>f the act shall not be construed to prevent the manu- 
facture and sale, as provided in the act, at wholesale, to drug- 
gists, only of pure grain or fruit or ethyl alcohol, for medicinal, 
pharmaceutical, scientific and mechanical purposes. 8 This sub- 
ject is treated more fully under "Druggists." 

§ 45. Denatured and Wood Alcohol and Denatured Rum. 

At the end of sec. 14 there is a general and independent provi- 
sion that nothing in the act shall be construed to apply to wood 
or denatured alcohol, the manufacture or sale of which does not 
require the payment of the United iStates internal revenue tax 
on liquor dealers. As stated, this provision is independent of 
other provisions, but is restricted to' such alcohol where the pay- 
ment of the United States tax is not required. Section 8 pro- 
vides that nothing in the act nor any section thereof shall have 
any application whatever to denatured alcohol 9 or denatured 
rum intended for use only in the industrial or mechanical arts, 
including especially the manufacture of tobacco, cigarettes, che- 
roots or cigars, where the same is brought or shipped into the 
state under bond and there kept and stored under bond in strict 



5. § 8. 6. § 15. 

7. § 8. 8. § 8. 

9. But the section does not mention wood alcohol. 



50 TH£ VIRGINIA PROHIBITION ACT. 

compliance with the United iStates internal revenue laws and regu- 
lations, until actually applied to the uses above mentioned and 
none other whatsoever. 

Denatured Alcohol. — In construing these two sections to- 
gether it will be noticed that sec. 8 makes no mention of wood 
alcohol, while sec. 14 makes no mention of denatured rum, but 
denatured alcohol is mentioned in both sections. In order to de- 
termine what the act means in regard to denatured alcohol it is 
probably best to read the two sections together in the language 
of the legislature and by preserving what is possibly its two in- 
tentions, by construing sec. 14 to mean denatured alcohol gener- 
ally and sec. 8 to mean denatured alcohol intended for use only 
in the industrial or mechanical arts and where brought into the 
state under bond in compliance with the United States revenue 
laws. In other words, the alcohol mentioned in sec. 14 is that to 
which the United States revenue laws do not apply and the al- 
cohol mentioned in sec. 8 is that to which such laws do apply. 
The conclusion is that denatured alcohol, the manufacture or 
sale of which the United States revenue laws do not apply to, 
may be bought, stored and sold for any purpose, while such 
alcohol, the manufacture or sale of which the United States 
revenue laws do apply to, may be bought only for industrial and 
mechanical purposes, and then must be kept under bond and in 
compliance with the United States revenue laws. 10 

Wood Alcohol. — The only provision relating to wood alcohol 
is that nothing in the act shall be construed to apply to wood 
alcohol, the manufacture or sale of which does not require a 
United States liquor dealer's license. 11 Where such license is 
not required wood alcohol may be manufactured and sold as if the 
act had not been passed. 

Denatured Rum. — As stated, the act does not apply to dena- 
tured rum intended for use in the industrial and mechanical arts. 



10. As to denatured alcohol under Byrd Law, see 3 Va. Code, p. 781. 

11. § 14. See provision in 3 Va. Code, 774. Wood alcohol is a 
narcotic poison, not an intoxicating liquor. Modern Woodmen v. 
Lawson, 110 Va. 81, 65 S. E. 509. 



PROHIBITED INTOXICANTS. 51 



46. Wine. Cider and Vinegar. 



The provisions of the act shall not be construed to prevent any 
person from manufacturing for his domestic consumption at his 
home, but not to be sold, dispensed or given away, except as 
provided in the act, wine or cider from fruit of his own raising; 
or to prevent the manufacture from fruit of cider for the pur- 
pose of making vinegar, not used as a beverage ; and non-intoxi- 
cating cider, containing not more than one per centum of alcohol 
by volume, for use or sale. 12 The provision that a person may 
make wine or cider from fruit of his own raising may be ques- 
tioned as to its constitutionality. It is really class legislation, and 
while the class created is one to which any person may enter, yet 
it is a purely arbitrary class. There is no reason why the owner of a 
vineyard or orchard should have a right to drink wine or cider and 
other persons denied its use. There must be some reason for 
the classification in order for class legislation to be valid. The 
provisions in regard to the manufacture of vinegar and non- 
alcholic cider are not restricted to the manufacture from fruit of 
one's own raising nor to demestic consumption at the home, but 
may be made for use or sale. 

§ 47. Jamaica Ginger. 

It is unlawful for any one except a licensed pharmacist to sell, 
dispense or give away to the consumer the extract, essence or tinc- 
ture of Jamaica ginger, and such pharmacist only upon the pre- 
scription of a regularly licensed physician, and then only the same 
conditions as ardent spirits are sold under the provisions of the 
act. But the act shall not be construed to prevent the manu- 
facture and transportation for sale outside of the state of the 
extract, essence or tincture of Jamaica ginger into territory 
where the same may be legally sold. 13 

§ 48. Soft Drinks — § 49. In General. 
The words "soft drinks" are defined to embrace all beverages 



12. § 8. See 13 Va. Law Reg. 234; 1 Va. Law Reg., N. S., 146. 
For other statutory provisions, see 3 Va. Code, pp. 774, 775, 776, 778; 
Acts 1914, p. 24. 

13. § 8. 



52 THE VIRGINIA PROHIBITION ACT. 

which may be offered for sale, not embraced in the words "ar- 
dent spirits.'' The act reads "The words 'soft drinks,' as used 
in this act, shall be construed to embrace and include any and all 
beverages, patented, domestic or otherwise, of every description 
and kind, which may be offered for sale, in this State, not em- 
braced in the words 'ardent spirits' as defined in this act." 14 

Ardent Spirits as Flavor or Mixture. — It is provided that it 
shall be unlawful for any dispenser of soft drinks to use any 
ardent spirits as a flavor or mixture. 15 This provision, because 
it refers to ardent spirits, must be construed in connection with 
sec. 1 defining ardent spirits. If the provision in such section, 
"all beverages containing more than one-half of one per centum 
of alcohol," is to be read to mean that beverages containing less 
than that amount are not ardent spirits, they may be mixed with 
soft drinks, and the mixture is a soft drink. This is necessarily 
so because it is not an ardent spirit. 16 But whether or not a drink 
containing less than one-half of one per centum of alcohol and 
which will not produce intoxication is a soft drink, can not be 
determined until it is decided what the definition of "ardent 
spirits" means. Any person violating this provision of the 
act shall be deemed guilty of a misdemeanor and shall 
be fined not less than twenty-five nor more than one hun- 
dred dollars for the first offense, and shall be fined not less than 
fifty nor more than five hundred dollars for the second offense, 
and for even- subsequent offense shall be fined not less than one 
hundred nor more than five hundred dollars, and confined in jail 
not less than one nor more than six months. 17 

§ 50. License to Sell or Dispense. 

It is unlawful for any person, firm or corporation to dispense 
soft drinks without first obtaining a license to do so, for which 
no additional tax shall be charged, from the circuit court of the 
county, or the corporation or hustings court of the city in which 



14. § 64a. As to definition of "ardent spirits," see ante. Ardent 
Spirits," § 12. 

15. § 64b. 16. See § 64b. 
17. § 64b. 



PROHIBITED INTOXICANTS. S3 

county or city the privileges are to be exercised. The act pro- 
vides that the license must be obtained by a person, firm or cor- 
poration desiring to dispense soft drinks. By the use of the 
word "dispense,'' it is the probable intention of the act to apply 
only to those dispensing to the general public and not to those 
engaged in the manufacture or wholesale of soft drinks. An- 
other provision of the same section, however, uses the word 
"sell." 1S The license here referred to is a special license to sell 
soft drinks, additional to and not in lieu of any other license re- 
quired by law. 

Application for License. — Any citizen may appear personally 
or ,by counsel in opposition to the granting of license, and the 
court may, in its discretion, refuse to grant such license if con- 
vinced that the person applying is not a suitable person to exer- 
cise the privilege. 19 The act reads, "the court may in its discre- 
tion refuse to grant such license if convinced that the person ap- 
plying is not a suitable person to exercise the said privilege." Is 
this provision to be read independently of the first part of the 
sentence in which it is placed, which is, "any citizen may appear 
personally or by counsel in opposition to the granting of such 
license," and be made to mean that the court may exercise its dis- 
cretion only when opposition is made by such citizen? This con- 
clusion is very easily arrived at by construing the two provisions 
together. ' But what the legislature undoubtedly means is to pro- 
vide that a citizen may, in case he so desires, appear in opposi- 
tion to the granting of the license, and thereby to bestow upon him 
the absolute right to do so. The provision relating thereto is in- 
tended to be independent of the provision for act of the judge in 
granting the license. If such construction is not given the statute, 
the license would necessarily be granted as of course, unless such 
citizen appeared in opposition. But this can not be reconciled 
with the provision "that the court may in its discretion refuse" 
to grant the license. The statute is then to be construed as 
of two independent provisions: (1) providing for the right 
to the citizen to appear in opposition; and (2) giving the court 



18. 8 64a. 19. § 64b. 



54 THE VIRGINIA PROHIBITION" ACT. 

power to grant or refuse the license in its discretion, whether 
or not the citizen appears in opposition. 

Granting License. — The court having jurisdiction to grant the 
license is the court of the county or city in which the privilege 
is to be exercised, and, it would seem, that the privilege is to 
be exercised at the contemplated place of business of the appli- 
cant. The provisions that a sale may be deemed committed as 
of the place of delivery does not apply in this connection, and 
therefore, the court where the place of business is situated may 
grant a license to deliver beyond the territorial jurisdiction of 
such court. 

What is meant by the provisions "the court may in its discre- 
tion refuse to grant such license if convinced that the person ap- 
plying is not a suitable person to exercise the said privilege?" 
As stated, this provision is independent of that relating to ap- 
pearance by a citizen, and therefore the judge may be convinced 
through other sources than such citizen. By the use of the words 
"if convinced," a hearing is provided for, otherwise the judge 
could not be convinced of the suitableness of the applicant. The 
act must be construed to mean that both the applicant and the 
citizen have a right to be heard and to produce evidence relating 
to the issue of the suitableness of the applicant. The act reads 
"the court may in its discretion refuse to grant such license." 
This is, of course, to be construed that the court may also in its 
discretion grant such license. In the granting or refusing to 
grant the license, the court can not act arbitrarily but must exer- 
cise a sound judicial discretion, which it can not abuse. By the 
use of the words "in its discretion" and "if convinced," the statute 
clearly shows that such is its meaning. But from the exercise of 
its discretion in granting or refusing to grant the license, no 
appeal lies, unless possibly where the court has abused its dis- 
cretion. 

Revocation of License. — The court may revoke such license 
after giving to the holder of the same an opportunity to be heard 
in opposition to such revocation. The holder of the license is 
granted an opportunity to be heard, and as is the case of grant- 
ing the license, there must be a hearing and an exercise of a 



PROHIBITED INTOXICANTS. 55 

judicial discretion. In order to give the holder an opportunity to 
be heard, there must be notice to him and a definite time set for 
such hearing. 

Sales for Benevolent and Charitable Purposes. — It is not neces- 
sary to obtain a license to sell soft drinks at any place for benevo- 
lent or charitable purposes. 20 



20. § 64b. 



IV. Carriers. 

§ 51. What Carriers May Transport Ardent Spirits. 

§ 52. To Whom Delivery May Be Made. 

§ 53. Quantity That May Be Delivered. 

§ 54. Time Delivery May Be Made. 

§ 55. Container and Label Thereon. 

§ 56. Duty and Liability of Carrier. 

§ 57. Duty and Liability of Agent or Employee. 

§ 58. Books and Records Kept by Carrier. 

§ 59. Affidavit of Consignee. 

§ 51. AVhat Carriers May Transport Ardent Spirits. 

The act provides that no person or firm, and no corporation 
other than corporations authorized by the laws of the state to 
engage in the transportation of merchandise, as common carriers, 
shall bring into the state, for use in the state, from any point 
without the state, or transport from one point to another in the 
state, or from any point in the state to any point without the 
state, any ardent spirits. 1 The term "common carrier" is to be 
construed to include any railroad, express or canal company, 
chartered by this or any other state and doing business in this 
state, whether incorporated or not, and whether operated or con- 
trolled by an individual or partnership. 2 An express company 
is a common carrier. 3 

§ 52. To Whom Delivery May Be Made. 

A carrier may not lawfully deliver ardent spirits to a minor, 
nor to a student at any university, college or other school in the 
state, nor to a female who is not the head of a family. 4 It is 
unlawful to deliver to a minor in any case unless, possibly, where 
such minor is a female and the head of a family. A delivery to 
a student, whether or not a minor, is unlawful. The provisions 



1. § 39. 2. Va. Code, § 1297A. 

3. Southern Express Co. v. McVeigh, 20 Gratt. 264. 

4. § 39. See 3 Va. Code, p. 779. 

[56] 



CARRIERS. 57 

relating to the persons to whom delivery may be made do not 
require that the consignee have -a home. Delivery may be made 
to a person who may not lawfully keep ardent spirits ; for it may 
be made to a person who has no home. To avoid responsibility 
the carrier must not make delivery to the forbidden persons 
above mentioned. What is here said relates solely to the liability 
of the carrier and not to any right of the consignee to receive, 
which is discussed under the section relating to the affi davit of 
the consignee. 

Any person falsely representing himself to be the consignee 
of any ardent spirits under the act, and receiving or offering or 
attempting to receive the same, and any consignee making a false 
affidavit, shall be guilty of a misdemeanor. 5 

It is also provided that any consignee may authorize, in writ- 
ing, a person not of intemperate habits or addicted to the use of 
narcotic drugs, not a minor or a female, to receive for him such 
ardent spirits. Such person shall sign the receipt or record, as 
agent for the consignee, provided that the written authority 
shall be accompanied by the affidavit of the consignee as herein- 
before required; provided it shall be unlawful for any common 
carrier to deliver ardent spirits to any person on Sunday or be- 
fore eight o'clock in the morning or after five o'clock in the 
afternoon of any other day. 6 

Signing Record and Making Affidavit. — Any person who shall 
receive distilled liquor, wine or beer without signing the record 
or making the affidavit required, or who shall make a false affi- 
davit, shall, for the first offense, be guilty of a misdemeanor, and 
for a second or any subsequent offense, of making a false affi- 
davit, shall, be guilty of a felony. 7 The offense here created has 
a defined punishment and is not punishable as the crime of per- 
jury is punishable under the Code. 8 Any druggist or manager 
of a hotel licensed under the act, failing to comply with any of 
the provisions of this section, or who shall make a false affidavit, 
shall be guilty of a misdemeanor. 9 



5. § 39. 6. § 39. 

7. § 40. 8. See Va. Code, §§ 3742, 3743. 

9. § 15. 



: 



I - • - I ■ :; ~ — 

7 — . " _ 




"-■' _S_ '_ _' ' ~ - ~V ' "_" - 



n [ :-: 



CARRIERS. 59 

tion applies alone to druggists, but the exemption in sec. 14 ap- 
plies to hotels., and a carrier can not lawfully make a delivery 
to hotels in the counties and cities there exempted. 

Delivery to Hospital or Laboratory. — The act provides that a 
common carrier may transport and deliver ardent spirits to hos- 
pitals or pure grain, fruit or ethyl alcohol to chemical laboratories 
having a license to order and receive the same for use of the 
hospital or laboratory, and not to be used contrary to the provi- 
sions of the act. 12 In describing what may be delivered to a 
hospital the act uses the term "ardent spirits." but as to what 
may be delivered to a laboratory, the restriction is to pure grain. 
fruit and ethyl alcohol. 

§ 53. Quantity That May Be Delivered. 

A carrier may deliver to a consignee for his own use and 
consumption not more than one quart of distilled liquor or three 
gallons of beer or one gallon of wine, and not oftener than once 
a month. 13 When construed in connection with the provision 
of the act relating to the keeping of records and their filing with 
the clerk of the court on the fifth of each month, it would seem 
that "Once a month" means once during each month and not 
that a full month of days must intervene between the deliveries. 
Under such construction a deliver}* may be made on the last 
day of one month and another deliver}- made on the first day 
of the succeeding month without liability being imposed upon the 
carrier, but two or more deliveries can not be made during a 
single month. This relates to the liability of the carrier in mak- 
ing deliver}-, but other provisions define the right of the con- 
signee to receive deliver)-. It is provided that the consignee 
must make affidavit that he has not received any distilled liquor, 
wine or beer from any person or from any place, contrarv to 
the provisions of the act. nor in excess of the quantity allowed 
by the act. within thirty days preceding the date of his affidavit. 
The period of thirty days relates only to the consignee, for which 



12. § 14. Hospitals are not mentioned in § 15. relating to deliv- 
er}- to druggists and hotels. 

13. §5 39, 40. 



60 THE VIRGINIA PROHIBITION ACT. 

he alone is liable if his affidavit is false, and not to the liability 
of the carrier. 14 

The delivery to licensed druggists and hotel keepers may be 
in such quantities and as often as the druggist or hotel keeper 
may deem necessary. 15 The provision permitting carriers to 
make delivery to hospitals and chemical laboratories does not 
limit the quantity which may be delivered, which must be con- 
strued to be without limitation. 16 

§ 54. Time of Delivery May Be Made. 

It is unlawful for any common carrier to deliver ardent spirits 
to any person on Sunday or before eight o'clock in the morning 
or after five o'clock in the afternoon of any other day. 17 

§ 53. Container and Label Thereon. 

Under the provision allowing a consumer to purchase certain 
quantities of ardent spirits once a month, the one quart of dis- 
tilled liquor must be in a single container, but there is no re- 
striction as to the number of containers in which the beer or 
wine may be shipped; but the act requires that every container 
in which such distilled liquor, wine or beer is carried, shall have 
on it a card not less than twelve inches long, by six inches wide, 
upon which shall be stated in letters not less than one inch high, 
the kind and quantity of its contents, but a container in which 
a quart or less is carried, may have on it a card six inches long 
by four inches wide, upon which is stated in letters not less than 
one inch high, the kind and quantity of its contents. 18 Another 



14. §§ 39, 40. See post, "Affidavit of Consignee," § 58. 

15. § 15. 16. § 14. 
17. § 39. See 3 Va. Code, p. 778. 

16. § 40. See 3 Va. Code, p. 782. "No person in this State shall 
receive or accept delivery from railroad, steamboat, express company, 
or transportation company of any kind, or from any person whom- 
soever, any ardent spirits brought into this State from any point 
without the State, or ardent spirits transported from one point to 
another within this State, except as follows: He may receive one 
quart of distilled liquor "in a single container," or three gallons of 
beer, or one gallon of wine, not oftener than once a month, provided 




CARRIERS. 61 

section substantially similar provides that every container in which 
such ardent spirits, wine or beer are carried shall, except as 
hereinafter ~ provided, have a card not less than six by twelve 
inches, upon which shall be stated in letters not less than one 
inch high, the kind and quantity of ardent spirits, wine or beer 
that it contains. 19 While the bottle in which the ardent spirits 
are carried is a container, what is here meant by "container" is 
undoubtedly the outside box or wrapping in which the bottles 
are put. This construction is necessary to effectuate the purpose 
of the act to provide conspicuous evidence of the contents of the 
article shipped. A label on the bottle or bottles incased in a 
box or wrapper is not sufficient to satisfy the requirement of 
the statute. 

§ 56. Duty axd Liability of Carrier. 

As to Use by Consignee. — The various provisions of the act, 
in regard to the liability of the consignee for the use to which 
he may put ardent spirits delivered to him by a carrier, apply to 
the consignee only, and not to the carrier. None of the provi- 
sions make the carrier liable for the acts of the consignee, nor 
do they impose upon the carrier any duty in regard to the un- 
lawful use to which such ardent spirits may be put. When the 
carrier has made a record and taken the affidavit required by the 
act, it has fulfilled its obligations and can not be held responsible 
for any subsequent act of the consignee. 20 

For Act of Passenger in Taking Drink. — A carrier is not liable 
where a person violates the act by drinking on one of its cars, 
boats or other vehicles, or in a station. The passenger alone is 
the transgressor. 21 



that every container in which such distilled liquor, wine or beer is 
carried, shall have on it a card not less than twelve inches long, by- 
six inches wide, upon which shall be stated, in letters not less than 
one inch high, the kind and quantity of its contents, but a container in 
which a quart or less is carried, may have on it a card six inches 
long by four inches wide, upon which shall be stated in letters not 
less than one inch high, the kind and quantity of its contents." § 40. 

19. § 39 20. §§ 14, 15, 39. 

21. § 37. 



S i b z zm : " : e lOHiBmox act. 

_ r ■■_".- - - / • ■' - — 7.-.T :■. '.-. /,:-: .- u_--.i —:".:'. : : - 

riiiployee or agenr of a common : . \- it to collect, receive 

: i - "insmit any money or valuable cooaderadLion in payment for 

-It.-.: foirifis delivered by sock agent or employee of the 

cannier,, or to solicit or receive or transmit any order for ardent 

: : r another person or rece: >r f ee on 

irdent spirits shipped or delivered - : 2 - ~\ - : The pro 

.:..- makes it unlawful for the - ; -.- '" 2^2-222 to collect 

or receive? orit:. : : ..: makes t : the carrier itself. 

_~ : ooarse ghc carrier tan tct )nb - p its igents and if it 

irrtakea t : violate the bi in this reg neone or more of 

be held triminally responsible, bat no trspansftSkj 

:'ji to the carrier ifseii Fhe cvei e flc t ft e d , 

feeeamse tine carries :am k d:":"- . ~ ; violation by the 

::.:..:: -- --.'- :: 222:.: ; r2- :rint:r.j.ll_- . i : . ^ - - 

I"~e - : : col for any person 

:r 2:2222 ■ ■ - . ::on with, any carrier to 

"r :r i; - - ; ;: § z u formation or direction 

rersfflo may secure arde c no 

titc'.i ''■-'- .'-'- tltis ::.-.:.r:- :~ :> 2 r:.iv"± \i-t-i ::.- '" : r : :er~on 

1:2: 122 lasscnzrr irt: tl.r <ta:utr :e.ir? t.tr ::-.::-.::- :-. -'r,iz 

tifee Ip g tf ^ b rt wff g' meant any person and not a - " . - ~ - 

: " I 22 . -. : 1: : nun I n Em:: 

7 . • - : : : . - y : : - ■ — " : . ' ::'".:;:: : ■ ■ - , - :' z: z.-.t : : r ' 

:: >±e : :: -i reqoire-: -hall fail to keep 

iucit rrc-.zr: :r -ttall iel:~rT tltr ir 22:22 ; r.ti trir^-i-irtr-: :: --7 

..._... : ........ . ... . _ _ . . . . ajgOM :efore he 

' , - Li: iade the affida : required bv thi 3 

t: :r_ : * i'.tall : 2 i : : zlr * ~ - \ ~. 2 - .2 2 : " r : - . :z r 2 . .: .. r 2 2 .2 2 - 2 \ i i ': e 
" - " 

" _~ : - — i ror shall -2- of any com- 

mon carrier soficit m n ac ei ic x transm 2 order foi ardent 
spirits for amodfier person, nor shall ar. employee or agent 



22. See : 12. : 

KL §39. 



CARRIERS. 63 

receive any commission or fee on any ardent spirits shipped, 
transferred or delivered by such common carrier. A violation 
of this provision shall be a misdemeanor. 25 Any person in 
charge of or employed in connection with any car, boat, hack, 
jitney, or other public conveyance or automobile, who shall pro- 
cure for or assist in procuring, or who shall give any informa- 
tion or direction by which any person may secure ardent spirits, 
shall be guilty of a misdemeanor, and upon conviction, shall be 
fined not less than ten nor more than one hundred dollars. 20 

Collecting. — It shall be unlawful for any employee or agent 
of any common carrier doing business in the state to collect, 
receive or transmit any money or other valuable consideration 
in payment for any aident spirits, delivered by said agent or 
employee, or any other agent, or employee of such common 
carrier. A violation of this provision shall be a misdemeanor. 27 

§ 58, Books and Records Kept by Carrier. 

There are several provisions of the act relating to books and 
records to be kept by carriers. These various sections differ 
somewhat, but when all are construed together, the carrier is 
required to keep an alphabetically arranged book, in which shall 
be entered before the delivery thereof, the name of every shipper 
and the person to whom ardent spirits" are shipped, the amount 
and kind received, and upon delivery, the date of delivery and 
to whom delivered, and after the entry has been made and be- 
fore delivery is actually made it must be signed by the consignee, 
or person authorized by him in writing to receive the shipment. 28 

Section 38 of the act provides that "all railroad, steamboat or 
other boat companies, express and transportation companies, 
which shall in any mariner at any time, transport ardent spirits 
from one place to another within this State, except as hereinafter 
provided, are hereby required to keep books alphabetically ar- 
ranged, in which shall be entered immediately upon receipt 
thereof the name of every person shipping, or to whom ardent 



25. § 21. 26. § 37. 

27. § 21. 

28. §§ 15, 38, 39. See 3 Va. Code, p. 782. 



64 ' THE: VIRGINIA PROHIBITION ACT. 

spirits are shipped; the amount and kind received, the date of 
delivery, by whom and to whom delivered. After this record 
is made and before delivery it shall be signed by the consignee. 
The book shall be open to the inspection of any State, county or 
municipal officer, or any deputy of such officer, or of any other 
person, during the business hours of the company. Such books 
or a copy of said records, attested by an officer of the company, 
or verified by affidavit, shall be admissible as evidence in any 
court, and shall be prima facie evidence of the fact therein stated 
in any trial or proceeding for the enforcement of the provisions 
of this act. Any railroad, express company, steamboat company, 
or transportation company who shall not require some one of its 
employees to keep such record, shall be fined not less than 
twenty-five nor more than one hundred dollars for every day or 
portion thereof during which such failure shall continue." Sec- 
tion 39, that "Every common carrier undertaking the transporta- 
tion of ardent spirits from any point without this State to any 
point within this State, or from one point to another, within this 
State, shall keep an alphabetically arranged book, in which shall 
be entered before the delivery thereof, the name of every shipper 
and person to whom ardent spirits are shipped, the amount and 
kind received, and upon delivery, the date of delivery and to whom 
delivered." And section 40 requires a record made or kept al- 
phabetically by the company transporting the distilled liquor, 
wine or beer, which shall show the name of shipper, name of con- 
signee, quantity and kind shipped, and date of shipment. 

Alphabetical Arrangement. — The act requires but a single en- 
try, and as the name of the shipper is the first enumerated item 
of the entry, it readily bears the construction that the book shall 
be alphabetically arranged according to the names of the various 
shippers. This construction is probably necessary because of the 
act, but that construction which would make the act most easily 
enforced and which best comports with its object, is that the 
arrangement should be according to the names of the persons re- 
ceiving shipments. 

Signing Reford by Consignee. — The act provides that any per- 
son who shall receive such distilled liquor, wine or beer without 



CARRIERS. 65 

signing the record shall be guilty of a misdemeanor. 29 The con- 
signee can undoubtedly sign by mark. 

Duty of Agent or Employee to Keep Record. — The act pro- 
vides that if any employee or agent, charged with the duty of 
keeping the record required by this section, shall fail to keep it, 30 
or shall deliver the ardent spirits transported to any person other 
than the consignee, or to such consignee, before he has signed 
his name and made the affidavit required by this section, or shall 
fail to file the affidavit as herein required, he shall be guilty of a 
misdemeanor. 31 

Of Delivery to Druggist or Hotel. — Where the delivery is to a 
licensed druggist or manager of a licensed hotel the consignee 
shall sign a record, to be made and kept by the transportation 
company, which shall state the name of the shipper, the kind and 
quantity of the ardent spirits shipped and the date of shipment 
and delivery. 32 

Of Delivery to Hospital or Laboratory. — Where the delivery 
is made to a hospital or laboratory, licensed to order and receive 
the same, the act contains no provision for record or affidavit 
but provides merely that "nothing shall prevent common carriers 
from transporting and delivering such ardent spirits and alcohol 
to such hospitals or laboratories having a license to order and re- 
ceive the same, but before ordering or receiving such ardent spirits 
or alcohol, the hospital or laboratory shall procure a license from 
the court under the same conditions as a license is granted to 
druggists." The act provides that it shall be unlawful for any 
hospital to sell ardent spirits except upon prescription to its own 
patients, and that chemical laboratories shall make report of the 
disposition and use of all alcohol received by them, but with such 
provisions a carrier has nothing to do. These provisions do not 



29. § 40. 

30. "Any employee or agent of any express company, railroad com- 
pany, steamboat, company, or transportation company, charged with 
the duty of keeping such record, who shall fail to keep such record 
shall be guilty of a misdemeanor." § 38. 

31. § 39. 32. § 15. 



66 THE VIRGINIA PROHIBITION ACT. 

impose upon the carrier the duty to see that such ardent spirits 

are not used in violation of the law. 

Of Delivery of Denatured Alcohol. — Under sec. 14 of the act, 
which reads that the act shall not be construed to apply to wood 
or denatured alcohol, the manufacture or sale of which does not 
require the payment of the United States liquor dealers tax. such 
alcohol may be delivered by a carrier without a record thereof 
and without taking the affidavit of the consignee. 33 Under the 
provision of sec. 8, that denatured alcohol and denatured rum in- 
tended for use in industrial and mechanical arts, may be brought 
into the state under bond in compliance with the United States 
internal revenue laws, a carrier need keep no record nor is it 
necessary to take the affidavit of the consignee. 

Examination of Records and Books. — The record book shall 
be open to the inspection of any state, county or municipal of- 
ficer, or any deputy of such officer, or of any other person, dur- 
ing the business hours of the company. 34 

§ 59. Affidavits of Coxsigxee. 

The act provides that after the record is made there shall be 
an affidavit in duplicate by the consignee, which shall state that 
the consignee is not a student, minor or a female (not the head 
of a family), that ardent spirits received were ordered by him, 
that he had not, within thirty days previous, received any ardent 
spirits of any kind whatever, from any place whatever, contrary 
to the provisions of the act, and that the ardent spirits then re- 
ceived are for his own use at his own home. This affidavit shall 
be made in duplicate, signed by the consignee and sworn to be- 
fore a justice of the peace, notary public or a commissioner in 
chancery, or before an agent of the transportation company, all 
*of which agents dealing with ardent spirits, shall, for the pur- 
poses aforesaid (without charge therefor), be authorized to ad- 
minister an oath, and one original shall be sent on or before the 
fifth day of the month following, to the clerk of the court of the 



33. § 14. 34. §§ 38, 39. 



CARRIERS. 67 

city or county having jurisdiction of criminal cases. 35 It is also 
provided that the consignee shall make an affidavit that the said 
dist}Ued liquor, wine or beer was brought into the state on his 
written order, and that he has not received any distilled liquor, 
wine or beer from any person, or from any place, in excess of the 
quantity allowed by the act, within thirty days preceding the 
date of his affidavit, and that the distilled liquor, wine or beer 
will not be used in violation of the provisions of the act. 36 

The affidavit must state ( 1 ) that the consignee is not a student, 
minor or a female, not the head of a family; (2) that the ardent 
spirits were brought into the state on his written order; (3) that 
he has not within thirty days previous received any ardent spirits 
from any person or from any place in excess of the quantity al- 
lowed by the act or contrary to the provisions of the act; and (4) 
that the ardent spirits are for his own use in his own home and 
not in violation of the act. 

The quantity of ardent spirits that may be delivered to a con- 
signee by a carrier is discussed above. It is here proper to con- 
sider what quantity the consignee may receive under his affidavit. 
It is first to be noticed that he can not receive any at all, if within 
thirty days he has received other ardent spirits contrary to the 
provisions of the act. A violation of the act by unlawfully re- 
ceiving ardent spirits disqualifies the affiant for a period of thirty 
days. By his affidavit the affiant qualifies himself to receive ship- 
ments by affirming his good behavior for the previous thirty days. 
But what is meant by receiving "in excess of the quantity al- 
lowed by this act ?" When construed in connection with the pro- 
visions of the act relating to carriers, "the quantity allowed" is 
probably the quantity for which the affidavit is made. In other 
words, the affiant can receive only one shipment in a period of 
thirty days ; but, to come to this conclusion, the words "in excess 
of the quantity allowed" must be construed to mean that the af- 
fiant has not received any ardent spirits at all from any person or 
place within the previous thirty days. The above seems to be 
the generally accepted meaning of the act and the officers charged 
with its enforcement will doubtless contend for it, but it violates 

35. § 39. 36. § 40. 



68 THE VIRGINIA PROHIBITION ACT. 

the letter of the act and the most obvious intention of the leg- 
islature. The act reads "in excess of the quantity allowed by 
this act." Had it been intended that the affiant could receive 
shipments once only in a period of thirty days would not it have 
been provided that the affiant should state that he had not re- 
ceived "any ardent spirits whatever" within the thirty days? Ac- 
cording to the letter of the act the affiant can make the affidavit, 
although within the previous thirty days he has received ardent 
spirits, if not "in excess of the quantity allowed by the act." 
This meaning may not be given the act, but its language must be 
much distorted to give it any other. 

The quantity previously received need not have been from a 
carrier, for the act reads "from any person, or from any place." 
and this evidently means the ardent spirits a person is allowed 
to bring into the state in his baggage as well as received from a 
carrier. 

The meaning of the statement required of the affiant, that the 
ardent spirits are for his own use in his own home, is to be de- 
termined by being read in connection with sec. 61 and other sec- 
tions defining "home" and personal use. 37 It has just been decided 
in a lower court that a bachelor may have a home and may re- 
ceive ardent spirits. 

*Duty of Employees. — If any employee charged with the duty 
of keeping the record required by the act shall deliver the ardent 
spirits transported to any person before he has made the affi- 
davit required, or shall fail to file the affidavit as required, he 
shall be guilty of a misdemeanor. 3 s 

Liability of Consignee. — Any consignee making a false affi- 
davit shall be guilty of a misdemeanor. 39 

Made in Duplicate and Filed. — The affidavit of the consignee 
required to be taken by the carrier shall be made in duplicate, and 
one original shall be sent on or before the fifth day of every month 
following the making of such affidavit, to the clerk of the court of 
the city or county having jurisdiction of criminal cases. 40 



37. See ante, "Home," § 15; "Selling," § 25; "Giving Away," § 26. 

38. § 39. 39. § 39. 
40. §§ 39, 54. 



CARRIERS. 69 

The act requires that one of the duplicates of the affidavit be 
filed with the clerk of the court on or before the fifth -day of 
every mdnth following the making of such affidavits and the clerk 
with whom the affidavits are filed shall post them in an alphabet- 
ically arranged book and permit their examination without fee. 41 

Delivery to Druggist or Hotel Keeper. — The consignee shall 
make an affidavit before some person authorized to administer an 
oath that the brandy, whiskey, wine, ale, beer, pure fruit and grain 
alcohol included in the shipment are to be sold, dispensed or used 
according to the provisions of the act. Any druggist or manager 
of a hotel licensed under the act, failing to comply with any of 
the provisions of this section, or who shall make a false affidavit, 
shall be guilty of a misdemeanor. 42 

On Delivery to Hospital or Laboratory. — The provision in re- 
gard to carriers delivering ardent spirits to hospitals and chemical 
laboratories does not require the carrier to take the affidavit of 
the consignee. 43 

On Delivery of Denatured Alcohol. — As to denatured and 
wood alcohol and denatured rum, the law in regard to the neces- 
sity of a carrier's taking the affidavit of the consignee is the same 
as the law in regard to the carrier's keeping a record of the de- 
livery of such alcohol. 44 

Stamping. — See post "Stamps," § 96. 



41. § 54. See also, § 39. 42. § 15. 

43. § 14. ' 44. §§ 8, 14. 



Y. Druggists. 

■:■. Receiving- 5:.:;~:er.: ::' Ardent Spirits. 

Prescription of Physician. 
S3. Affidavit of Purchaser. 
§ 64. Sales to Particular Persons. 
§ 65. Sales of Particular Ardent Spirits. 
§ 66. Quantity for Sale. 

§ 68. Statement of Amount of Ardent Spirits on Hand. 
§ 69. Liability of Druggist for Acts of Clerk. 
§ 70. Counties and Cities Exempt from Act 
:. Prosecution and Punishment 

§ 60. Receiving Shipment of Ardent Spirits. 

Nothing in the act shall be construed to prevent a duly licensed 
druggist under the act, from having shipped to him, or to prevent 
any transportation company from delivering to him, pure brandy, 
pure whiskey, ale, beer, wine and pure fruit, ethyl and grain al- 
cohol, in such quantities and at such times as such druggist li- 
censed under the act may deem necessary. But before any ship- 
ment is delivered, the consignee shall sign a record, to be made 
and kept by the transportation company, which shall state the 
name of the shipper, the kind and quantity- of the ardent spirits 
shipped, the date of shipment and of deliver)', and the consignee 
shall make an affidavit before some person authorized to admin- 
ster an oath that the brandy, whiskey, wine, ale, beer, pure fruit 
and grain alcohol included in the shipment are to be sold, dis- 
pensed or used according to the provisions of the act. Any drug- 
gist failing to comply with any of the provisions of this section, 
or who shall make a false affidavit, shall be guilty- of a misde- 
meanor. 1 

§ 61. Licensz it Sill Ardent Spirits. 

Xotice of Application. — Before a druggist shall sell ardent 
spirits on prescription, or pure fruit, ethyl, or grain alcohol for 

1. § 15. 

[70] 



DRUGGISTS. 71 

I 

scientific, mechanical or pharmaceutical purposes, or wine for 
sacramental purposes on affidavit as provided in the act, he must 
procure "a license to do so from the circuit court of the county, 
or the corporation or hustings court of the city. This is a special 
license in addition to the ordinary license to pharmacists. 2 Be- 
fore making application for such license notice must be posted 
and continuously kept on the front door of the store in which 
the privilege is to be exercised for at least thirty days before 
making the application, stating the court before which and the 
time at which the application will be made for license to sell 
pure fruit, ethyl and grain alcohol, pure whiskey and pure brandy 
and wine for sacramental purposes. Such notice shall be pub- 
lished once a week for three successive weeks in some news- 
paper published in the county or city, and if there is no news- 
paper published in the county in which the privilege is to be 
exercised, the notice shall be published in some newspaper of 
general circulation therein. 

Qualifications of Applicant. — Before the court shall grant any 
such license, the judge thereof shall be satisfied (1) that the 
person making the application is a qualified voter of the state 
and of good moral character, is a registered pharmacist in good 
standing, or employs a registered pharmacist; (2) that he has 
in his store drugs, belonging to him, and not including patent 
medicines and drugs to be sold on commission, of the value of 
one thousand dollars, wholesale price, provided that in towns 
of less than five hundred inhabitants the value of the stock of 
drugs referred to above shall be not less than five hundred dol- 
lars, wholesale value, and carries on in good faith the business 
of a druggist; (3) that he is not of intemperate habits or ad- 
dicted to the use of any narcotic drugs; and (4) that he is a 
person of good character and will observe the laws controlling 
the sale of ardent spirits and alcohol. 

Granting License. — Before granting the license the judge shall 



2. As to Code provisions relating to license to druggists, see 3 Va. 
Code, pp. 768, 770, 771, 772, 773, 774, 776, 777. As to form of license, 
.see 3 Va. Code, p. 777. As to mandamus to compel issuance, see 189 
111. App. 424. 



72 THE VIRGINIA PROHIBITION ACT. 

I 

be satisfied that the applicant has presented satisfactory proof 
that there is a necessity existing for the granting of such license, 
and that the sale of ardent spirits at that place and by such ap- 
plicant will not be contrary to sound public policy or injurious 
to the moral or material interests of the community. In no 
case shall a license be granted if a majority of the voters quali- 
fied to vote at the last preceding general election petition the 
court not to grant such license in the following cases, namely: 
in a town of over one thousand inhabitants, the petition shall 
be signed by a majority of such qualified voters of such town; 
in a town under one thousand inhabitants, the petition shall be 
signed by a majority of such qualified voters of the town and 
district in which such town is situated ; if in the district the 
petition shall be signed by a majority of such qualified voters 
of the district and towns of less than one thousand inhabitants 
in said district. 3 

Bond of Applicant. — If the license is granted, the applicant 
shall give bond in the penalty of not less than one thousand dol- 
lars, nor more than ten thousand dollars, as the court may re- 
quire, with security to be approved by the court and with con- 
dition that he will not dispense or sell any ardent spirits or alco- 
hol, except under and in accordance with the provisions of the 
act. 4 

License to Manufacture and Sell at JJlwlesale. — In addition to 
the license above mentioned, the court may in its discretion issue 
to any person, a qualified voter of the state and of good moral 
character, a license to manufacture pure fruit, ethyl, and pure 
grain alcohol to be sold only to licensed druggists and to manu- 
facturers of preparations, the manufacture and sale of which 
are permitted by the act, and not to be sold for transportation 
out of the state, and a license to wholesale druggists only to sell 



3. As to review of order refusing license, see In re Gohn's License, 
57 Pa. Super Ct. 160; State v. District Court. 143 P. 193. As to man- 
damus to compel issuance, see McRae v. Pine, 114 P. 983, 25 CaL 
App. 594. 

4. § 14. 



DRUGGISTS. 73 

pure grain, ethyl, and fruit alcohol, to any druggist, or other per- 
son for scientific, pharmaceutical and mechanical purposes, or 
wine for sacramental purposes for use by religious bodies under 
the provisions of sec. 9 of the act ; and pure grain, ethyl, and 
fruit alcohol, pure whiskey, pure brandy, and wine for sacra- 
mental purposes to retail druggists in Virginia only, licensed 
under the act, and pure grain, ethyl or fruit alcohol to retail 
druggists outside of the state of Virginia, where the sale thereof 
is permitted by law; provided that any citizen may appear per- 
sonally or by counsel in opposition to the granting of any license 
herein provided for. 

License Certificate. — The appellant shall, in the event that a 
license is granted, obtain from the commissioner of the revenue, 
upon the payment of the usual fee, the proper certificate, but 
no tax shall be required for the exercise of such privilege. 5 

§ 62. Prescription of Physician. 

No druggist shall sell any grain, fruit or ethyl alcohol, pure 
whiskey, brandy or wine except upon written prescription of 
a physician in active practice of good standing in his profession, 
and not of intemperate habits or addicted to the use of any 
narcotic drug, prescribing the quantity of alcohol, pure whiskey 
or brandy, designating the said amount in fractions of a pint, 
or quart, the disease or malady for which it is prescribed, how 
it is to be used, the name of the person for whom prescribed, 
the number of previous prescriptions for ardent spirits given 
by such physician to such person within six months next preced- 
ing the date of such prescription, and stating that the same is 
absolutely necessary for medicine, and not to be used as a bev- 
erage, and that such physician, at the time such prescription was 
given, made a careful, personal physical examination of such 
person; and only one sale, not exceeding one pint of whiskey 
or brandy or not exceeding one quart of pure fruit or grain 
alcohol shall be made upon such prescription, which shall at all 
times be kept on file by the druggist filling the same, and open 

5. § 14. 



74 THE VIRGINIA PROHIBITION ACT. 

to the inspection of all state, county, and municipal officers, their 
deputies and inspectors. It shall be the duty of the druggist to 
register in an alphabetically arranged book, kept exclusively for 
the purpose of registering prescriptions and affidavits, all pre- 
scriptions from physicians mentioned in this section in the fol- 
lowing order : the name of the physician, the name of the person 
prescribed for, the quantity of alcohol, pure whiskey or pure 
brandy, and the use for which prescribed, and shall endorse on 
the prescription or affidavit the date upon which the prescription 
was filled, and the name of the druggist or firm filling such pre- 
scription, or making such sale, and such book shall at all times 
be open for the same inspection as the prescription. 6 

If any physician who is not in active practice, or who is not 
in good standing in his profession, or who is of intemperate 
habits, or addicted to the use of any narcotic drug shall issue 
any such prescription as is mentioned in the act, or if any phy- 
sician shall issue such prescription without at the time making 
a careful, personal physical examination of the person for whom 
the ardent spirits are prescribed, or shall prescribe ardent spirits 
for any person who he knows or has reason to believe is in the 
habit of drinking to intoxication, unless it is prescribed bona 
fide and solely for medical purposes as a necessary treatment, 
when the patient is confined to his bed or in some hospital or 
institution as a result of alcoholism, or shall in his prescription 
make any false statement, or shall prescribe ardent spirits when 
such ardent spirits are plainly not a remedy, or shall resort to 
any shift or device by which ardent spirits may be improperly 
procured, he shall be deemed guilty of a misdemeanor, and in 
addition to the penalty prescribed for a misdemeanor by the 
act, for the first offense under the act, the court may in its dis- 
cretion suspend the license of such physician for a period of 
six months, and for a second offense in addition to the penalty 
prescribed for a misdemeanor by the act the court shall suspend 
such license for a period of twelve months, and for any subse- 
quent offense in addition to the penalty prescribed for a misde- 
meanor bv the act, the court shall forthwith revoke the license 



6. 






DRUGGISTS. 75 



of said physician, and shall forthwith certify the fact of the revo- 
cation of such license to the authority granting such license, 
which order of revocation shall forthwith be made a matter of 
record by such authority, and shall act as a bar to the granting 
of license to such physician in the future. 

The law casts on the physician issuing the prescription the 
duty of ascertaining in .good faith that the intoxicant is a neces- 
sary remedy. The physician cannot cast on the patient, suffer- 
ing from some real or imaginary ailment, the privilege of diag- 
nosing his own case and prescribing the proper remedy. The 
evidence shows that such patients often want the thing that has 
caused the ailment rather than one to cure it. If the patient 
knows both the cause and nature of his malady and the "neces- 
sary remedy" therefore, he has little need to consult a physician. 
If the physician acts in good faith in prescribing intoxicating 
liquors as a medicine, he is not to be punished for an error of 
judgment, nor because another physician differs with him as to 
its being a necessary remedy; nor is he liable in case the patient, 
without his knowledge, intends to use the liquors thus obtained 
as a mere beverage or for a purpose other than medicinal, and 
he can not be convicted merely because the patient thereafter 
does so. 6a 

Register of Prescriptions. — It shall be the duty of the druggist 
to register in an alphabetically arranged book, kept exclusively 
for the purpose of registering prescriptions and affidavits, all 
prescriptions from physicians mentioned in this section in the 
following order: the name of the physician, the name of the 
person prescribed for, the quantity of alcohol, pure whiskey or 
pure brandy, and the use for which prescribed; and shall en- 
dorse on the prescription or affidavit the date upon which the 
prescription was filled, and the name of the druggist or firm 
filling the prescription, or making the sale, and such book shall 
at all times be open for the same inspection as the prescrip- 
tion. 7 The provision in regard to keeping the register must be 
construed to require an alphabetical arrangement of the names 



6a. State v. Pomeroy, 163 Mo. App. 288, 292, 147 S. W. 144. 
7. § 8. 



76 THE VIRGINIA PROHIBITION ACT. 

of the physicians, each followed by the name of the person pre- 
scribed for, the quantity of alcohol, etc., and the use for which 
prescribed. In no other manner could the register be kept "in 
the following order," as required. The principle of the statute 
in requiring the keeping of the register is to facilitate the inspec- 
tion thereof by the officers in the enforcement of the law, and 
it is seemingly unfortunate that the alphabetical arrangement re- 
quired is not of the names of the persons prescribed for instead 
of the names of the physicians ; but such is the express wording 
of the statute, which can not be changed by any supposed intent 
of the legislature. 

§ 63. Affidavit of Purchaser. 

It shall be lawful for wholesale and retail druggists to sell 
pure grain or fruit alcohol for scientific, pharmaceutical and 
mechanical purposes, or wine for sacramental purposes, for use 
by religious bodies, only to a person, not a minor, nor of in- 
temperate habits and not addicted to the use of any narcotic 
drugs, who shall at the time and place of sale, if bought in per- 
son, make an affidavit in writing, signed by himself, before such 
druggist, or a registered pharmacist, then in the employ of such 
druggist, or, if not bought in person, before any person author- 
feed by law to administer oaths, stating the quantity, when, where 
and fully for what purpose and by whom such alcohol or wine 
is to be used, and that the affiant is not a minor nor of intemper- 
ate habits and not addicted to the use of any narcotic drugs. 
Such affidavit shall be filed and preserved by the druggist sell- 
ing the alcohol and wine and be subject to the inspection at 
all times by any state, county or municipal officer, their depu- 
ties or inspectors, and a record thereof made by such druggist 
in the record book for prescriptions and affidavits herein men- 
tioned, showing date of affidavit, by whom made, the quantity 
of such alcohol, or wine, and when, where, for what purpose 
and by whom to be used. Only one sale shall be made upon such 
affidavit, and for no greater quantity than is therein specified. 
The person offering such prescription to be filled, or making such 
affidavit, shall certify to the correctness of the record in such 
record book, by recording his signature opposite such record of 



DRUGGISTS. 77 

such prescription or affidavit. For the purpose of the act, any 
registered druggist or pharmacist making such sale, shall have 
authority to-administer the oaths required by this section. 8 

§ 64. Sales to Particular Persons. 

Sales to Minors and Intemperates. — It is unlawful for a drug- 
gist to sell grain or fruit 9 alcohol 10 or wine to a minor or per- 
son of intemperate habits, addicted to the use of any narcotic 
drugs, and the purchaser is required to make affidavit that he 
is not a minor or intemperate person or addicted to the use of 
any narcotic drugs. 1X 

Sales to Physicians — Dentists and Veterinaries. — Section 9 
provides that the act shall not be construed to prevent sales by 
druggists to physicians, dentists and veterinary surgeons in ac- 
cordance with the provision of such section, and pure grain, 
fruit or ethyl alcohol to be used in the practice of their provi- 
sions and for no other purposes whatsoever. 12 

Sales to Hotels. — The act does not prevent the manager of a 
licensed hotel from ordering or receiving ardent spirits to be 
used for cooking and culinary purposes or externally with mas- 
sage in connection with baths. 13 Such purchase may be made 
from a druggist and without prescription or affidavit. Certain 
counties and cities are exempt from this provision of the act. 14 

Sales to Strangers. — If any person lawfully applying by affi- 
davit for ardent spirits is not personally known to the druggist 
to whom he applies, as the person named in the affidavit, and a 
proper person to receive such ardent spirits, the druggist shall 
require him to be identified by some person known to him, who 
is not of intemperate habits or addicted to the use of nacrotic 
drugs. 15 This section requires the druggist to determine (1) 



8. § 9. 

9. Again, as in § 9, ethyl alcohol is omitted. 

10. This provision does not mention pure whisky nor brandy. 

11. § 9. 

12. § 9. See post, "Physicians, Dentists and Veterinaries," § 92. 

13. § 14. 14. § 14. 
15. § 56. 



78 THE VIRGINIA PROHIBITION ACT. 

that such stranger is a proper person to receive ardent spirits, 
and (2) that he is identified by some person known to the drug- 
gist and who is not of intemperate habits or addicted to the use 
of nacrotic drugs. This provision differs from those provisions 
where the sales are made upon prescriptions or affidavits to 
persons known to the druggist, and in which case the druggist 
can rely upon the prescription or affidavit and does not have 
to determine whether or not the person furnishing ardent spirits 
is a proper person to receive them. The words "some person 
known to him" should be construed not to mean that the drug- 
gist must know absolutely that such person is not of intemperate 
habits, etc., but that such is the knowledge or reputation known 
to the druggist of him. 

§ 65. Sales of Particular Ardent Spirits. 

Whisky and Brandy. — Whisky and pure brandy are put upon 
the same footing as pure grain, fruit or ethyl alcohol, and may 
be sold and kept for or stored for sale by druggists for me- 
chanical, pharmaceutical, medicinal and scientific purposes. 16 
It is expressly provided that no whisky or brandy shall 
be sold except upon prescription. 17 This provision is stated 
parenthetically and is meaningless unless it serves the purpose of 
a double precaution. 

Grain, Fruit and Ethyl Alcohol. — The act provides that it shall 
not be construed to prevent the sale and keeping and storing for 
sale by druggists, of pure grain or fruit or ethyl alcohol, and of 
pure whiskey and pure brandy, for mechanical, pharmaceutical, 
medicinal and scientific purposes, or of wine for sacramental 
purposes for use by religious bodies ; 18 nor to prevent the sale 
and keeping and storing for sale by druggists, of pure grain, 
fruit or ethyl alcohol for mechanical, pharmaceutical, medicinal 
and scientific purposes. 9 The words "for mechanical, pharmaceu- 
tical, medicinal and scientific purposes" must necessarily be con- 



16. § 8. 17. § 9. 

18. § 8. 19. § 8. 



DRUGGISTS. 79 

strued to limit the purposes for which such alcohol may be sold 
or kept for sale. 20 

. Denatured Alcohol and Rum. — The provision that nothing in 
the act shall apply to denatured alcohol or denatured rum in- 
tended for use only in the industrial and mechanical arts, of 
course applies to druggists. 21 

Patent Medicines. — The act provides that it shall not be con- 
strued to prevent the sale or gift and keeping and storing for 
sale by druggists and general merchants or others duly licensed 
by existing laws of any medicinal preparations manufactured 
in accordance with formulas prescribed by the United States 
pharmacoepia and national formulary patent and proprietary 
preparations and other bona fide medicinal and technical prep- 
arations which contain no more alcohol than is necessary to ex- 
tract the medicinal properties of the drugs contained in such 
preparations, and no more alcohol than is necessary to hold the 
medicinal agents in solution and to preserve the same, and which 
are manufactured and sold as medicine and not as beverages. 22 

Toilet Articles. — A druggist may sell and store for sale toilet 
articles if upon the outside of each bottle, box or package is 
printed in English conspicuously, legibly and clearly the quantity 
by volume of alcohol in such preparations, the manufacture or 
sale of which does not require the payment of the United States 
liquor dealer's tax. 23 

Preparations Intended for External Use. — A druggist may 
manufacture, sell and store for sale medicinal and antiseptic 
preparations and solutions not intended for internal, use, nor to 



20. The provision reads, "The provision of this act shall .not be 
construed to prevent the sale and keeping and storing for sale by 
druggists, of pure grain or fruit or ethyl alcohol, and of pure whiskey 
and pure brandy, for mechanical, pharmaceutical, medicinal and scien- 
tific purposes, or of wine for sacramental purposes for use by relig- 
ious bodies." § 8. 

21. § 8. 14 (27). 22. § 8. 
23. § 8. 



80 THE VIRGINIA PROHIBITION" ACT. 

be sold as beverages, if upon the outside of each bottle, box 
or package is printed in English conspicuously, legibly and 
clearly the quantity, by volume, of alcohol in such preparations, 
the manufacture or sale of which does not require the payment 

of the United States liquor dealer's tax.- 4 

Flavoring Extracts. — A druggist may manufacture, sell 25 or 
keep for sale the food product known as flavoring extracts, which 
shall be so manufactured or sold for cooking and culinary pur- 
poses only but not to be sold for beverage purposes, the manu- 
facture or sale of which does not require the payment of the 
United States liquor dealer's tax.- ; 

Jamaica Ginger. — A druggist may sell or keep for sale. 27 dis- 
pense or give away to a consumer the extract, essence or tinc- 
ture of Jamaica ginger, but he may do so only upon the pre- 
scription of a regular licensed physician, and then only upon the 
same conditions as ardent spirits are sold under the provisions 
of the act. 

Wine. — A druggist may sell wine for sacramental purposes for 
use of religious bodies. 28 

Where United States Liquor Dealer s Tax Required. — It shall 
not be lawful for any druggist to manufacture or sell any toilet, 
medicinal, antiseptic preparations or solutions, or any flavoring 
extracts or patent or proprietary medicines or preparations, the 
manufacture or sale of which requires the payment of the United 
States liquor dealer's tax. 29 



24. § 8. 

25. The act does not in terms provide that he may sell, but pro- 
vides that he ma}* manufacture or keep for sale, which, of course, 
means that he ma}* actually sell, else the words "keeping for sale" 
would be meaningless. 

26. § 8. 

27. The act does not provide that a druggist may keep Jamaica gin- 
ger for sale, as is the case with other provisions, but, as a druggist 
-could not sell or dispense Jamaica ginger without being able to keep 
the same for such purposes, the provisions must be construed to mean 
that he may keep such article on hand. 

28. § 8. 29. § 8. 



DRUGGISTS. 81 

Purpose and Use. — No druggist shall sell any such grain, ethyl, 
or fruit alcohol, or pure whiskey, or pure brandy, except for 
medicinal, scientific, pharmaceutical, or mechanical purposes, or 
-wins for sacramental purposes for use by religious bodies only, 
except as hereinafter provided, nor toilet, medicinal, antiseptic 
preparations or solutions or flavoring extracts or patent or pro- 
prietary medicines or preparations for beverage purposes in the 
guise of flavoring extracts or medicines. 30 

Soft Drinks. — A druggist is required to obtain a license, for 
which no additional tax shall be charged, to dispense soft 
drinks. 31 

§ 66. Quantity for Sale. 

The act provides that only one sale, not exceeding one pint 
of pure whiskey or brandy or one quart of pure grain 32 or fruit 
alcohol shall be made by a druggist upon a single prescription. 

§ 67. Labels. 

It is unlawful for any druggist to sell any toilet, medicinal 
or antiseptic preparations or solutions not intended for internal 
human use, unless upon the outside of each bottle, box or pack- 
age is printed in English conspicuously, legibly and clearly the 
quantity by volume of alcohol in such preparations. 33 

§ 68. Statement of Amount on Hand of Ardent Spirits. 

Each retail and wholesale druggist shall file a sworn statement 
with the clerk of the circuit or corporation court on or before 
the fifth of each month, stating the amount of pure fruit, ethyl, 
and grain alcohol, pure whiskey and pure brandy and wine on 
hand on the first of the previous month, the amount received 



30. § 8. 31. § 64b. 

32. In this connection the act does not mention ethyl alcohol; it 
reads, "fruit or grain alcohol." This omission was apparently inten- 
tional and the provision is to be construed as omitting ethyl alcohol 
from the restriction as to the quantity that may be sold upon a single 
prescription. 

33. § 8. 



82 THE VIRGINIA PROHIBITION ACT. 

during the previous month, and the amount on hand on the 

date the statement is made. 34 

Filing Prescriptions and Affidavits with Clerk of Court. — A 
druggist is required to file a duplicate original of all prescrip- 
tions and affidavits with the clerk of the circuit court of the 
count}- or the corporation court of the city, which has criminal 
jurisdiction, on or before the fifth day of even.- month follow- 
ing the filing of such prescriptions and the making of such affi- 
davits. 35 

Stamping Prescriptions 'and Affidavits. — A druggist is required 
to keep in stock and furnish stamps for all prescriptions and 
affidavits, which are to be prepared by the commissioner and 
sold by him to the druggist, and the persons for whom the pre- 
scriptions are given or the persons making the affidavits are re- 
quired to pay for stamps affixed thereto. 36 

§ 69. Liability of Druggist for Acts of Clerk. 

If any clerk or employee in a drug store other than the drug- 
gist or owner of such drug store, shall sell or give away any ar- 
dent spirits contrary to the provisions of the act, upon convic- 
tion of such clerk or employee, such druggist, or owner of such 
drug store, may before trial and the revocation of the license 
and the destruction of the ardent spirits in his possession as 
required in section nine, be permitted to present to the court 
evidence that such sale or gift was without his knowledge, con- 
sent, acquiescence or connivance, and if the court is convinced 
from such evidence that such druggist, or owner of such drug 
store was not in any sense a party to the violation of the act 
by his clerk or other employee, then such druggist or owner of 
a drug store shall not be deemed guilty of the violation of said 
section nine of the act by reason of the violation thereof by his 
clerk or employee. 37 If any druggist or owner of a drug store, 
who has been duly notified that any clerk or employee has been 



34. § 14. 35. § 54. 

36. § 67. 37. § 10. 



DRUGGISTS. 83 

convicted of a violation of any of the provisions of this section, 
shall fail at once to discharge such clerk or employee perma- 
nently, he shall be guilty of a misdemeanor, and upon convic- 
tion, shall be fined not less than one hundred nor more than 
five hundred dollars, and for any subsequent offense shall be 
fined not less than one hundred nor more than five hundred dol- 
lars, and be confined in jail not less than one nor more than 
six months, and if any registered pharmacist shall be convicted 
of the violation of this section, he shall, in addition to the pen- 
alties provided for such violation, forfeit his license as a regis- 
tered pharmacist for a period of two years. 38 

Liability of Druggist for False Affidavit of Purchaser. — The 
act provides that it shall be a misdemeanor for any person, who 
is of intemperate habits or addicted to the use of narcotic drugs, 
to make affidavit before a druggist or use such alcohol or wine 
for any other purpose than that stated in the affidavit. 39 There 
is nothing in the section in regard to the liability of the drug- 
gist for the acts of the affiant. It would seem that the druggist 
can rely upon the affidavit and is protected thereby. 

Liability of Druggist for Invalid Prescription of Physician. — 
The act also provides for the punishment of a physician, who is 
disqualified to write a prescription or who writes a false pre- 
scription. 40 As in the case of affidavits, a druggist is not re- 
quired to pass upon the competency of a physician or the validity 
of his prescription, and therefore the druggist can rely upon 
and is protected by the prescription. 

§ 70. Counties and Cities Exempt from Act. 
In certain counties and cities 41 it is provided that it shall not 



38. § 10. 39. § 12. 40. § 13. 

41. The counties of Roanoke, Halifax, Bedford, Grayson, Smyth, 
Russell, Scott, Lee, Floyd, Augusta, Pittsylvania, Washington, Bland, 
Giles, Pulaski, Prince William, Southampton, Rockingham, Princess 
Anne, Amherst, Accomac, Carroll, Luenburg, Prince Edward, Patrick, 
Brunswick, Henrico, Chesterfield, Campbell, Loudoun, Orange and 
Northampton, Montgomery and Louisa and the cities of Roanoke, 
Staunton, Danville and Richmond and Radford are exempted from 
this provision of the act. § 15. 



84 THK VIRGINIA PROHIBITION ACT. 

be lawful for druggists to purchase, store or sell ardent spirits, 
except wine for sacramental purposes and pure grain, fruit and 
ethyl alcohol for medicinal, scientific, mechanical and pharma- 
ceutical purposes, as provided by the act. 42 In the construction 
of this provision the definition "ardent spirits" must be referred 
to. 43 The general provisions permitting drug stores to sell and 
keep for sale grain, fruit and ethyl alcohol, pure whiskey and 
brandy, and wine are not as broad as the definition of "ardent 
spirits" in sec. 1 ; but the provision above is an exception to 
the general provision relating to druggists and omits pure whis- 
key and brandy. It is also an exception to the more general 
provisions in sees. 1 and 3, and therefore, all ardent spirits ex- 
cept wine and alcohol as mentioned in the provision are for- 
bidden in such counties and cities. 

§ 71. Prosecution and Punishment. 

Where Druggist Holds United States Liquor License. — While 
a druggist is not excepted from the provision that the commis- 
sioner shall obtain and publish a list of all persons holding 
United States internal revenue tax receipts for the sale of ar- 
dent spirits, he is excepted from the provision that the attorney 
for the commonwealth, upon receiving the list of names, shall 
proceed against such persons for violation of the provisions of 
the act. 44 

Burden of Proof and Presumptions. — In any prosecution 
against a druggist, owner of a drug store, registered pharmacist, 
clerk or employee, for selling or giving ardent spirits contrary 
to law, if such sale or gift be proven, it shall be presumed to 
be unlawful in the absence of satisfactory proof to the con- 
trary, but the presentation of such prescription or affidavit by 
the defendant on trial shall be sufficient to rebut the presump- 
tion arising from the proof of such sale or gift; provided the 
jury shall believe from all the evidence in the case that such sale 
or gift was made in good faith under the belief that such pre- 



42w § 15. 43. § l. 

44. § 59. 



DRUGGISTS. 85 

scription or affidavit and the statements therein were true ; and 
provided, further, that such druggist, owner of a drug store, 
registered pharmacist, clerk or employee shall have complied 
with all other provisions of the act relating to such sale or 
gift. 45 

Punishment and Forfeiture. — -If any druggist, owner of a drug 
store, registered pharmacist, clerk, or employee shall, knowingly, 
sell or give away such alcohol, pure whiskey, pure brandy or 
wine, to any one to be used for any purpose other than that 
named in such prescription or affidavit (provided that no whis- 
key or brandy shall be sold except upon prescription), or shall 
sell or give away any ardent spirits without such prescription 
or affidavit, he shall be deemed guilty of a misdemeanor, and 
in addition to the penalty prescribed for a misdemeanor by the 
act, the license of such druggist to sell ardent spirits shall be 
revoked by the court for a period of one year, and all ardent 
spirits in possession of such druggist, or in such drug store, 
or on the premises connected therewith, shall be destroyed by 
order of the court; for a second or a subsequent offense, in ad- 
dition to the penalty prescribed for a misdemeanor by the act, 
the license of such druggist to practice pharmacy shall be re- 
voked forthwith, and all ardent spirits in the possession of such 
druggist, or in such drug store, or on the premises connected 
therewith, shall forthwith be destroyed, by order of the court, 
and the court shall forthwith certify the fact of the revocation 
of such license to the authority granting such license, which 
order of revocation shall forthwith be made a matter of record 
by said authority, and shall act as a bar to the granting of li- 
cense to such druggist in the future. 46 

When Drug Store May Be Declared Nuisance. — A drug store 
in which ardent spirits are manufactured, stored, sold, vended, 
dispensed, bartered, given away, furnished or used contrary to 
law by any scheme or device whatever, shall be held taken and 
deemed a common nuisance. And any person who shall main- 
tain, aid or abet, or knowingly be associated w T ith others in main- 

45. § 10. 46. § 9. 



86 THE: VIRGINIA PROHIBITION ACT. 

taining such common nuisance, shall be guilty of a misdemeanor, 
and judgment shall be given that such store be closed up, but 
the court may, upon the owner giving bond in the penalty of 
not less than $500, and with security to be approved by the 
court, conditioned that the premises shall not be used for un- 
lawful purposes, or in violation of the provisions of the act, 
turn the same over to its owner. 47 The provision that the com- 
missioner may maintain a suit in equity to enjoin a nuisance 
as defined by the act applies to drug stores, but the life of the 
injunction in such case shall be for one year, and not perpetual. 48 

47. § 31. 48. § 36. 



.VI. Hotels and Boarding Houses. 

§ 72. License. 

§ 73. Keeping in Possession in General. 

§ 74. Receiving and Keeping for Cooking and Baths. 

§ 75. Selling, Dispensing and Giving Away. 

§ 76. Liability for Acts of Employees and Guests. 

§ 77. Liability of Employee. 

§ 78. Rights and Liabilities of Guests. 

§ 79. Prosecution and Punishment. 

§ 72. License:. 

Before a manager of a hotel shall receive any ardent spirits, 
wines or alcohols, he, or the owner of the hotel, must procure 
a license to do so from the circuit court of the county, or the 
corporation or hustings court of the city in which the hotel is 
located. 1 As is the case with druggists the license required is 
a special and additional one to the one required of hotels gen- 
erally. There are two classes of hotels, those licensed under the 
act and those not licensed, but- the only distinction is that the 
licensed hotels may obtain ardent spirits for cooking and baths. 
In other respects they are both amenable to the provisions of 
the act. The keeper of a boarding house can not obtain such 
license. 

Application and Notice. — Before making application for such 
license, notice must be posted and continuously kept in a con- 
spicuous place in the office of the hotel in which the privilege is 
to be exercised, for at least thirty days before making the ap- 
plication, stating the court before which and the time at which 
the application will be made for license to have and use such 
ardent spirits, wines and alcohols. Such notice shall be pub- 
lished once a week for three successive weeks in some news- 
paper published in the county or city, and if there is no news- 
paper published in the county in which the privilege is to be 

1. § 14. 

[87] 



88 THE VIRGINIA PROHIBITION ACT. 

exercised, the notice shall be published in some newspaper of 
general circulation therein. 2 

Qualifications of Applicant and Grounds for Granting. — Be- 
fore the court shall grant any such license, the judge thereof 
shall be satisfied (1) that the manager of the hotel making the 
application is of good moral character, and is a hotel manager 
in good standing; (2) that he is not of intemperate habits or 
addicted to the use of any narcotic drugs ; (3) that he will ob- 
serve the laws controlling the use of such ardent spirits, wines 
and alcohols ; (4 ) that the hotel for which the license is sought 
is a reputable one in which the business of keeping a hotel is 
carried on in good faith by the owner or lessee thereof ; and 
(5) that the applicant has presented satisfactory proof that there 
is a necessity existing for the granting of such license. 

Granting License. — As in the case of druggists there is a full 
discretion vested in the court to grant or refuse the license, 
whether or not a citizen appears in opposition to the granting. 
It is provided that any citizen may appear personally or by coun- 
sel in opposition to the granting of the license. 3 

Bond. — If the license is granted, the applicant shall give bond 
in the penalty of not less than five hundred dollars, nor more 
than twenty-five hundred dollars, as the court may require, with 
security to be approved by the court and with condition that 
such applicant will not use or dispose of any ardent spirits, wines 
or alcohol, except under and in accordance with the provisions 
of the act. 4 

Revocation. — The act provides that for the unlawful use of 
ardent spirits the license of the hotel may be revoked. 5 

§ 73. Keeping in Possession in General. 

It is unlawful for any keeper of a hotel or boarding house, 
even though he may reside in said hotel or boarding house, to 



77 7. 



2. 


§ 14. 


See 3 Va. 


Code, 


pp. 


768, 


772, 


773, 


3. 


§ 14. 


See 3 Va. 


Code, 


pp. 


771, 


776, 


777. 


4. 


§ 14. 














5. 


§ 53. 















HOTELS AND BOARDING HOUSES. 89 

keep in said hotel or .boarding house or on the premises con- 
nected therewith, any ardent spirits, except for the personal use 
of himself and his family, or as provided herein, and not to be 
sold % o.r dispensed or given away by any shift or device what- 
soever; and if the keeper of any hotel or boarding house shall 
knowingly permit ardent spirits to be sold, kept, stored, dis- 
pensed, given away, or used in any part of said hotel or board- 
ing house, or on the premises thereof, except on the prescription 
of a physician, and except as provided in the act, he shall be 
guilty of a misdemeanor. 6 The first exception is that the 
"keeper," when he resides in the hotel or boarding house, may 
keep ardent spirits for the personal use of himself and family. 
By "keeper" is meant manager, if this provision is construed 
in connection with that relating to licenses to hotels. It is neces- 
sary that he reside in the hotel or boarding house, thereby mak- 
ing such place his home. A hotel or boarding house may be 
the "home" of the keeper. It is within the definition of "home," 
and not within any of the exceptions thereto 1 . The exceptions 
apply only to a roomer, lodger or guest and not to the keeper 
of the hotel or boarding house. The keeper may then keep in 
his possession the amount allowed by law. He must not keep 
them in the room of a guest or roomer nor in a place of common 
resort, nor must he keep them as a device to evade the act. 7 
While the general provisions relating to giving ardent spirits 
to another bear the construction that the keeper of a hotel or 
boarding house may do so, the provision relating to hotels and 
boarding houses expressly prohibits giving away. The second 
exception "as provided herein" relates to receiving and keeping 
for cooking and baths. 

Wood or Denatured Alcohol. — Section 14, in connection with 
other provisions relating to hotels, contains the general provision 
that nothing in the act shall be construed to apply to wood or 
denatured alcohol, the manufacture or sale of which does not 
require the payment of the United States liquor dealer's tax. 
Of course, a hotel keeper can receive and store such alcohol. 8 



6. § 52. 7. § 61. 

8. § 2. 



90 the virginia prohibition act. 

§ 74. Receiving axd Keeping eor Cooking and Baths. 

Nothing in the act shall prevent the manager of any hotel 
from ordering or receiving ardent spirits, wines, or alcohols 
which shall be used for cooking or culinary purposes only, or ex- 
ternally with massage in connection with baths ; and not to be 
used contrary to the provisions of the act; and nothing in the 
act shall prevent common carriers from transporting and deliv- 
ering such ardent spirits, wines and alcohols to such hotels hav- 
ing a license to order and receive the same; but before ordering 
or receiving such ardent spirits, wines or alcohols, the hotel shall 
procure a license from the court, as hereinafter provided ; and 
provided, further, that such ardent spirits, wines or alcohols shall 
be used in no other manner than for cooking or any culinary 
purpose, or to be used externally with massage in connection 
with baths, where baths are given in such hotel or bath houses 
connected therewith. 9 

Quantity Received and Kept. — Nothing in the act shall be 
construed to prevent a manager of a hotel licensed under the 
act, from having shipped to him, or to prevent any transporta- 
tion company from delivering to him, pure brandy, pure whiskey, 
ale, beer, wine and pure fruit, ethyl and grain alcohol, in such 
quantities and at such times as he may deem necessary. 10 

Signing Record and Making Affidavit. — Before any shipment 
is delivered, the consignee shall sign a record, to be made and 
kept by the transportation company, which shall state the name 
of the shipper, the kind and quantity of the ardent spirits shipped, 
the date of shipment and of deliver}', and the consignee shall 
make an affidavit before some person authorized to administer 
an oath that the brandy, whiskey, wine, ale, beer, pure fruit and 
grain alcohol included in the shipment are to be sold, dispensed 
or used according to the provisions of the act. Any manager 
of a hotel licensed under the act, failing to comply with any of 
the provisions of this section, or who shall make a false affidavit, 
shall be guilty of a misdemeanor. 11 



9. § 14. 10. § 15. 

11. § 15. 



HOTELS AND BOARDING HOUSES. 91 

Statement of Amount on Hand. — The manager of any li- 
censed hotel shall file a sworn statement, with the clerk of the 
court which granted the license, on the first of each month, stat- 
ing the. amount of ardent spirits, wines and alcohols on hand on 
the first of the previous month, the amount received during the 
previous month and the amount on hand .on the date the state- 
ment is made. 12 

Rules Prescribed by Commissioner. — The commissioner has 
promulgated 'the following rules in regard to hotels: "1. Ardent 
spirits as defined in section 1 of chapter 146 of Acts of Assem- 
bly of 1916 (Mapp prohibition law), kept in stock or stored by 
hotels must be securely kept in one room or locker or refrigera- 
tor, and must be under lock and key. One person only shall 
keep the key to the room or locker or refrigerator in which ar- 
dent spirits are kept, and no other person is to open or in any 
way handle such ardent spirits except by permission of the keeper 
of the keys aforesaid, or in his presence. The name and home 
address of the keeper of said keys and custodian of said ardent 
spirits shall be filed with the Commissioner of Prohibition. 

"2. All ardent spirits disbursed or distributed or released in 
any way by aforesaid custodian shall be recorded in a book kept 
for the purpose, in which shall be entered by the custodian the 
exact kind and quantity of ardent spirits withdrawn from his 
keeping, the date of such withdrawal and the name and home 
address of the person to whom it is delivered and the purpose 
for which it is released. 

"3. Actual measured inventory of ardent spirits in store must 
be taken the first day of each month showing not only the kind 
of ardent spirits, but actually showing the specific kinds of ardent 
spirits. This inventory with like particularity must show the 
quantity of each on hand the first day of the previous month, the 
amounts acquired during the interim and the balance remaining 
on date of inventory. Ardent spirits, if used, must be intermixed 
with culinary articles of food and beverages in the culinary de- 
partment by employees, and not outside of this department by 

12. § 14. 



92 THE VIRGINIA PROHIBITION ACT. 

guests and others; and such articles of food or beverages must 
not contain more than one-half of 1 per cent of alcohol by 
volume. 

"4. All storerooms for ardent spirits, kitchen and culinary pro- 
ducts, must be subject to inspection by any State or municipal 
officer charged with the enforcement of the laws governing 
ardent spirits at all times, and upon request samples of food 
and beverages must be submitted to said officers for analysis." 

Counties and Cities Exempt. — The following counties are 
hereby exempted from the operation of so much of this section 
as permits the possession and use by hotels of ardent spirits for 
cooking or culinary purposes or externally with massage in con- 
nection with baths : Smyth, Russell, Scott, Prince Edward, Gray- 
son, Giles, Bland, Prince William, Accomac, Louisa, Carroll, 
Orange, Xorthampton, Southampton, Washington, Mathews, 
Middlesex, Lee, Tazewell, Buchanan, Henry, Wise, Dickenson, 
Rockingham. Greensville, Sussex, Floyd, Brunswick, Spotsyl- 
vania, Culpeper and the cities of Danville and Roanoke. 13 While 
certain parts of sec. 15 apply to hotels, the provision exempting 
certain counties and cities does not, for it reads that it "shall not 
be lawful for druggists to purchase, store, etc." 

Boarding House. — A boarding house can not obtain a license 
to receive and keep ardent spirits for cooking and baths. This 
applies only to hotels. 

§ 75. Selling, Dispensing and Giving Away. 

It is unlawful for any keeper of a hotel or boarding house to 
sell, dispense or give away, or to knowingly permit ardent spirits 
to be sold, dispensed, or given away, in the hotel or boarding 
house, except on the prescription of a physician. The only per- 
son the keeper can lawfully give to is a member of his family. 14 

§ 76. Liability for Acts of Employees and Guests. 

Employee Aiding in Procuring Ardent Spirits. — Any proprie- 
tor of any hotel or house of public or private entertainment in 

13. § 14. 14. § 52. 



HOTELS AXD -BOARDING HOUSES. 93 

the state who shall knowingly permit any bell boy, elevator boy, 
or other employee to, or who shall himself, procure ardent spirits 
for, or give .direction and information by which ardent spirits 
can be -secured by any guest, patron or other person, shall be 
guilty of a misdemeanor, and when convicted, shall be fined 
not less than one hundred nor more than five hundred dollars, 
and for any subsequent offense shall be fined not less than one 
hundred nor more than five hundred dollars and be confined in 
jail not less than one nor more than six months. 15 

Duty to Discharge Employee. — Any proprietor of any hotel or 
house of public or private entertainment in the state, who, when 
duly notified that any employee has been convicted of a violation 
of any of the provisions of the act, shall fail at once to discharge 
such employee permanently, shall be guilty of a misdemeanor, 
and when convicted, shall be fined not less than one hundred nor 
more than five hundred dollars, and for any subsequent offense 
shall be fined not less than one hundred nor more than five hun- 
dred dollars and be confined in jail not less than one nor more 
than six months. 16 

Liability for Acts of Guests. — The keeper of a hotel or board- 
ing house is liable if he knowingly permit ardent spirits to be 
sold, kept, stored, given away, or used in any part of the hotel 
or boarding house, or on the premises thereof, except upon the 
prescription of a physician. 17 The keeper is undoubtedly charge- 
able with knowledge of those things which by reasonable dili- 
gence he should know, among which is the reputation of his house 
and the appearance and conduct of his guests. 

§ 77. Liability of Employee. 

Aiding Guest in Obtaining Ardent Spirits. — Any bell boy, 
elevator boy, or employee of any hotel or place of public enter- 



15. § 51. 

16. § 51. What is meant by "duly notified?" Is notice from any 
source sufficient or must the hotel keeper be formally notified by an 
officer charged with the enforcement of the act? 

17. § 52. 



94 THE VIRGINIA PROHIBITION ACT. 

tainment in the state who shall procure for or assist in procur- 
ing, or who shall give any information or direction to any guest 
or patron of such hotel or house of public or private entertain- 
ment, or other person by which such guest or other person may 
secure ardent spirits shall be deemed guilty of a misdemeanor, 
and upon conviction be fined not less than ten nor more than 
fifty dollars and be confined in jail or committed to the reforma- 
tory for not less than one nor more than six months. 18 

§ 78. Rights axd Liabilities of Guest. 

Any transient guest may earn* in his baggage for the bona fide 
use of himself or family not in excess of one quart of ardent 
spirits, the same not to be opened or used, or given away by such 
transient guest during his stay in such hotel or boarding house. 19 
It is further provided that nothing in the act shall be construed 
to prohibit any person travelling from one point to another within 
the state, or from without the state, to any point within the state, 
from carrying in his baggage for the bona fide use of himself or 
his family, and not as a means of evading the intent and meaning 
of the act, and not to be used contrary to the provisions of the 
act, ardent spirits not in excess of one quart, which bona fide 
baggage it shall not be necessary to label or mark, as provided 
in the act. 20 Under the act it is lawful for a passenger on a 
train or boat and for a guest at a hotel or boarding house to 
carry- or have in his possession a quart of ardent spirits, but it 
is unlawful for such person to take a drink therefrom in either 
of such places or in any public place. It would seem, therefore, 
that such passenger or guest can with impunity drink only "on 
the sly." 

§ 79. Prosecution axd Punishment. 

The provision that the payment of the United States internal 
revenue tax required of liquor dealers shall be prima facie evi- 
dence of sale, etc., does not apply to the keeper of a hotel licensed 
under the act. 21 



18. § 50. 19. § 61. 

20. § 39. 21. § 30. 



VII. Hospitals and Laboratories. 

§ 80. In General. 

Nothing in the act shall prevent the superintendent of a hospi- 
tal from ordering, purchasing or receiving ardent spirits, or the 
superintendent of a chemical laboratory from ordering, purchas- 
ing or receiving pure grain, ethyl or pure fruit alcohol for the 
use of the hospital or laboratory, not to -be used contrary to the 
provisions of the act, and nothing shall prevent common carriers 
from transporting and delivering such ardent spirits and alcohol 
to such hospitals or laboratories having license to order and re- 
ceive the same, but before ordering or receiving such ardent 
spirits or alcohol, the hospital or laboratory shall procure license 
from the court under the same conditions as license is granted 
to druggists; if the license is granted, the applicant shall give 
bond in the penalty of not less than one thousand dollars, nor 
more than ten thousand dollars, as the court may require, with 
security to be approved by the court and with condition that he 
will not dispense or sell any ardent spirits or alcohol, except un- 
der and in accordance with the provisions of the act. 

It is unlawful for any hospital to sell ardent spirits, except 
upon prescription to its own patients under the same restrictions 
and reports required of druggists ; and chemical laboratories shall 
make reports as required of druggists of the disposition and use 
of all alcohol received by .them. 1 The reports required to be 
kept are similar to the records and books required of druggists. 
Whether or not hospitals and laboratories are required to file a 
sworn statement with the clerk of the circuit court on or before 
the fifth of each month, stating the amount of pure fruit, ethyl, 
and grain alcohol, pure whiskey and pure brandy and wine on 
hand on the first of the previous month, the amount received 
during the previous month, and the amount on hand on the date 
the statement is made, is not clear. The latter provision reads 
"each retail and wholesale druggist" but the former can be con- 
strued to refer to it. 

1. § 14. 



VIII. Clubs, Billiard Rooms, etc. 

§ 81. Clubs and Fraternity Houses. 

§ 82. Pool and Billiard Rooms, Bowling Alleys and Stores. 

§ 83. Houses of Prostitution. 

§ 84. Cars and Boats. 

§ 85. Wagons, Automobiles, etc. 

§ 86. Public Places and Places of Common Resort. 

§ 87. Lodge Room or Rooms. 

§ 81. Clubs and Fraternity Houses. 

It is declared unlawful for ardent spirits to be kept, stored, 
sold, distributed, given away, or used in or at any club house, 
fraternity house, lodge or meeting place, whether such meeting 
place is a house, room, boat, car, or any place in any building, 
or in the open air, on land or water, or in any place, except in a 
bona fide "home" as hereinafter provided. 1 And the act provides 
that every person who shall directly or indirectly, or by associa- 
tion with others, keep or maintain or in any manner aid, assist 
or abet in keeping or maintaining any such club house, fraternity 
house, lodge or meeting place of any corporation, association or 
combination, or any place in which ardent spirits are received 
or kept for the purpose of use, gift, barter or sale, or for distri- 
bution, or individual use by means of locker or otherwise, or for 
division among the members of any club, fraternity, lodge, cor- 
poration, association or combination *by any means whatsoever ; 
and every person who shall use, barter, sell, store or give away, 
dispense or assist or abet in bartering, selling, storing or giving 
away in individual lockers or otherwise, any ardent spirits so re- 
ceived or kept, shall be deemed guilty of a misdemeanor, and 
upon second offense shall be guilty of a felony, and in all cases 
the members, shareholders or guests in any club, fraternity, lodge, 
association, corporation or combination mentioned in this sec- 
tion shall be competent witnesses to prove any violation of the 



1. § 16. As to license under Byrd Act, see 3 Va. Code, p. 767. As 
to license under Act 1910, see 3 Va. Code, p. 906. 

[96] 



CLUBS, BILLIARD ROOMS, ETC. 97 

provisions of this section of the act, or of any fact tending 
thereto. 2 

§ 82. Pool and Billiard Rooms, Bowling Alleys and Stores. 

Ardent spirits can not be lawfully kept, sold or given away 
in any pool or billiard room or bowling alley. Such places are 
"places of common resort within the provision relating to keeping 
and giving away, and "public places" within the provision re- 
lating to unlawfully taking a drink. The act provides that if any 
keeper of a pool room, billiard room, bowling alley, store or 
other place requiring a license, or any employees with his knowl- 
edge, consent, connivance or acquiescence shall keep, store, dis- 
pense or use, contrary to the provisions of the act any ardent 
spirits, in addition to the penalties prescribed for the violations 
of the act, the license of such place shall be revoked for one 
year for the first offense, and for the second offense, no such 
license shall be granted at the same place or to the person con- 
victed for a period of two years ; provided that where the place 
is run under a lease by a person or persons other than the true 
owner of the building, nothing herein shall operate to prohibit 
the issuance of a license to a new lessee who was not in any 
way connected as employee or otherwise with the former busi- 
ness therein conducted at the time of the revocation of the li- 
cense. 3 These places may be declared nuisances and may be 
abated by injunction. 4 

§ 83. Houses of Prostitution. 

It is unlawful to deliver to, receive in, keep, store, dispense, 
give away or use ardent spirits, in a place reputed to be a house 
of prostitution, or in any place, except as provided in the act. 
Any violation of this provision is deemed a misdemeanor; a 
second or subsequent violation is to be deemed a felony. 5 A 
house of prostitution may be enjoined as a nuisance. 6 



2. § 16. 

3. § 53. As to license of pool rooms, see 2 Va. Code, pp. 2240, 2241. 

4. See §§ 31, 36. . 5. § 17. 
6. See §§ 31, 36. 

—7 



98 the virginia prohibition act. 

§ 84. Cars and Boats. 
See elsewhere. 7 

§ 85. Wagons, Automobiles, etc. 
See elsewhere. 8 

§ 86. Public Places axd Places of Common Resort. 
See elsewhere. 9 

§ 87. Lodge Room or Rooms. 

A lodge room is a room hired in the home of another as the 
place of abode of the lodger. 10 



7. See ante, "Transporting," § 30; "Drinking in Public Place," § 
36; "Carriers," IV. 

8. See ante, "In Wagon, Automobile, etc.," § 32 (3). 

9. See ante, "Clubs and Fraternity Houses," § 81; "Pool and Bil- 
liard Rooms, Bowling Alleys and Stores," § 82; "Drinking in Public 
Place," § 36. 

10. See ante. "Clubs and Fraternity Houses," § 81; "Hotels and 
Boarding Houses," VI. 



IX. Minors, Females, Students, Intemperates, Physi- 
>• cians and Manufacturers. 

§ 88. Minors. 

§ 89. Females. 

§ 90. Students. 

§ 91. Intemperate Persons. 

§ 92. Physicians, Dentists and Veterinaries. 

§ 93. Manufacturers. 

§ 88. Minors. 

The word "minor" is used without explanation or qualification. 
It therefore includes any person under majority, male, female or 
married, with the possible exception of the head of a family. 1 

Giving to and Sending 'to Obtain. — It is unlawful for any per- 
son, except a parent or guardian, to give ardent spirits to a minor, 
except on the prescription of a physician. 2 It is also unlawful 
for any person to send a minor to obtain ardent spirits, and if 
it appears in any prosecution, that a minor is acting as the agent 
of another person, such person is to be deemed guilty of a mis- 
demeanor. 3 Want of knowledge of the age of the infant is no 
defense to a prosecution for giving to or sending for ardent 
spirits. 4 

Keeping in Possession. — It shall be a misdemeanor for any 
minor to have ardent spirits in his possession. 5 

Delivery to by Carrier. — 'By implication, it is made unlawful 
for a carrier to deliver ardent spirits to a minor. 6 

False Affidavit. — The provision, that it shall be unlawful for 
a person of intemperate habits or addicted to the use of nar- 
cotics to make an affidavit to obtain ardent spirits from a drug- 



1. See Va. Code, § 3828. As to Byrd Law, see 3 Va. Code, p. 778. 

2, § 41. 3. § 41. 

4. State v. Perry (Or.), 151 Pac. 655. 

5. § 41. 6. § 39. 

[99] 



100 THE VIRGINIA PROHIBITION ACT. 

gist or carrier, does not mention infants. It is therefore not 
made unlawful by the act itself for an infant to make a false 
affidavit. 7 and the provision in the Code relating to false repre- 
sentations as to age by an infant to a licensed vendor of liquors 
does not apply. s 

§ 89. Females. 

It is unlawful for any female to order, receive or have in her 
possession, any ardent spirits, except as permitted in the act, and 
not then, unless she is the head of a family and for her own use 
In a bona fide home. 9 A carrier can not deliver ardent spirits to 
a female unless the head of a family, and then only for her own 
use in a bona fide home. 10 It is unlawful for any person to send 
a female to obtain ardent spirits for him, but the act does not 
provide, as in the case of infants, that if such female acts as the 
agent of another person, such person shall be guilty of a mis- 
demeanor. 11 There may be some question as to the validity of 
this provision, because it may lack a punishment. 

§ 90. Students. 

The only express mention of students in the act is in the pro- 
vision that a carrier may not deliver ardent spirits to "a student 
at a university, college or any other school in this state." 12 Un- 
der this provision no student can receive shipments of ardent 
spirits, although he is of majority, has a "home," or is the head 
of a family. The provision is restricted to students, and does 
not apply to other persons connected with the university, college 
or school in the capacity of teacher or otherwise. 

The general provisions of the act relating to minors and fe- 
males apply to students except as to the express provision above. 

As to the right to keep ardent spirits in his possession a stu- 
dent does not differ from any other person. He must have a 
"home" and must be of majority, and, if a female, must be the 
head of a familv. 



7. See § 12. 8. Ya. Code. § 3S28a. 

9. § 42. 

11. See § 41. 

12. § 39. See Ya. Code, § 3828, 




MINORS, FEMALES, ETC. 101 



§ 91. Intemperate Persons. 

Any person who shall continue to use ardent spirits as a bev- 
erage through the period of one year so as to produce intoxica- 
tion* as denned in the act, from time to time, shall be deemed 
a person of intemperate habits within the meaning of the act. 13 

Giving to. — It is unlawful to give ardent spirits to any person 
of intemperate habits or addicted to the use of narcotic drugs, 
and such person of intemperate habits, etc., is compellable, in 
any proceeding under the act, to disclose from whom he received 
such ardent spirits, and for a failure or refusal to make such 
disclosure such person is to be deemed .guilty of contempt and to 
be fined not less than five dollars nor more than fifty dollars 
and be committed to jail for a period of not exceeding thirty 
days. 14 

Granting Hotel License to. — Before the court shall grant the 
license provided for to a hotel, the judge shall be satisfied that 
the manager is not of intemperate habits or addicted to the use 
of narcotic drugs. 15 

Intemperate Physician. — If any physician who is of intemper- 
ate habits or addicted to the use of narcotic drugs shall issue 
any prescription mentioned in the act, he shall be deemed guilty 
of a misdemeanor and the court may, in its discretion, suspend 
his license. 16 

Right of Physician to Prescribe for Intemperate. — If any phy- 
sician shall prescribe ardent spirits for a person who he knows 
or has reason to believe is in the habit of drinking to intoxica- 
tion, unless it is prescribed bona fide and solely for medical pur- 
poses and is a necessary treatment, when the patient is confined 
to his bed or in some hospital or institution as a result of alco- 
holism, shall be guilty of a misdemeanor and the court may sus- 
pend his license. 17 



13. § 49. 14. § 41. 

15. § 14. 16. § 13. 

17. § 13. 



102 THE VIRGINIA PROHIBITION ACT. 

Delivery to by Carrier. — The provision making it unlawful for 
a carrier to deliver ardent spirits to a student, minor or female 
does not mention an intemperate person or person addicted to 
the use of narcotic drugs. 18 

Sales to by Druggists. — It is unlawful for wholesale or retail 
druggists to sell grain or fruit alcohol for scientific, etc., purposes, 
or wine for sacramental purposes to a person of intemperate 
habits or addicted to the use of narcotic drugs. 19 This provision 
does not mention ethyl alcohol. It is, however, a grant of the 
right to purchase from druggists and not a restriction thereon. 

§ 92. Physicians, Dentists and Yeterinaries. 

Nothing in the act shall be construed to prevent dentists, 
physicians and veterinary surgeons from purchasing in accord- 
ance with the provisions of the act, pure fruit or ethyl or grain 
alcohol to be used in the practice of their professions and for 
no other purpose whatsoever. 20 

§ 93. Manufacturers. 

The manufacturers of flavoring extracts, or of toilet, medi- 
cinal, antiseptic preparations or solutions, patent or proprietary 
medicines or preparations permitted to be manufactured by the 
act shall be permitted to purchase and to store ardent spirits or 
alcohol necessary for the manufacture of such articles, but not 
to be sold or given away, provided that such manufacturer must 
secure a license from the court under the same conditions as 
provided in the act for the granting of a license to sell ardent 
spirits to druggists and provided that such manufacturers shall 
make the monthly report as is required of druggists. 21 As to 
manufacturers of Jamaica ginger, see elsewhere. 22 



18. See § 32. 19. § 9. 

20. § 9. As to prescribing for intemperate persons, see ante, 
'Intemperate Persons," § 91. 

21. § 8. As to license under Byrd Law, see 3 Va. Code, p. 775. 

22. See ante, "Jamaica Ginger," § 47. 



X. Records, Affidavits and Stamps. 

§ 94. Records and Books. 
§ 95. Affidavits. 
§ 96. Stamps. 

§ 94. Records and Books. 
Kept by Carrier. — See elsewhere. 1 

Kept by Druggist. — Druggists are required to keep a record 
book for prescriptions and affidavits herein mentioned. 2 

Examination of Records. — The attorney for the commonwealth 
of every county and city in the state shall, as often as once a 
month, examine all prescriptions and affidavits and record books 
required to be kept by any section of the act and filed in the 
clerk's office, and if the prescriptions, affidavits and records are 
not made and kept according to the provisions of the act, or if 
he has reason to believe that there has been any violation of any 
of the provisions of the act he shall take such action as may be 
necessary to bring the offender to justice. 3 The commissioner 
in person or by his deputies or inspectors shall as often as possi- 
ble examine all prescriptions, affidavits and record books re- 
quired by the act, and report the violation of any of its pro- 
visions to the attorney for the commonwealth of the city or 
county in which the violations occur, whose duty it shall be to 
proceed at once to investigate and prosecute the same. 4 

§ 95. Affidavits. 5 

Whenever an affidavit is required to be administered under 
the provisions of the act, the person who is to receive and file 



1. See ante, "Books and Records Kept by Carrier," § 58. See 3 
Va. Code, p. 782. 

2. §§ 8, 9. See ante, "Druggists," IV. 

3. § 47. 4. § 48. 

5. See ante, "Affidavit of Consignee," § 59; "Affidavit of Pur- 
chaser," § 63. 

. 103 1 



104 THE VIRGINIA PROHIBITION ACT. 

such affidavit shall have authority to administer the oath, and 
the same shall he as binding as if administered by any officer 
now authorized by law to administer oaths. All prescriptions 
and affidavits required by the act shall be made in duplicate and 
one original filed with the clerk of the circuit court of the county 
or the corporation court of the city, which has criminal juris- 
diction, on or before the fifth day of every month following the 
filling of such prescriptions and the making of such affidavits, 
by the druggists, or by the common carrier handling the same, 
and the failure of any physician to make out said prescription 
in duplicate and the failure of the persons making the affidavit 
to do so in duplicate shall be deemed a misdemeanor. The clerk 
of the court with whom such prescriptions and such affidavits 
shall be filed shall paste them in an alphabetically arranged book, 
and permit their examination without fee. 6 

By Intemperate — False."' — If any person who is of intemperate 
habits or addicted to the use of any narcotic drug shall make the 
affidavit mentioned in the act relating to purchases from drug- 
gists, or if any person making such affidavit shall use as a bev- 
erage, or for any purpose, or at any place other than that stated 
in the affidavit, or shall knowingly permit another to make use 
of such alcohol or wine, or any part thereof, or shall knowingly 
make any false statement in such affidavit, he shall be guilty of 
a misdemeanor. 

§ 96. Stamps. 

Every prescription and affidavit required by the act shall have 
affixed thereto and duly cancelled by the initials in ink of the 
person affixing the same, a five cent stamp, to be furnished to 
druggists, transportation companies and other persons handling 
such prescriptions and affidavits, who shall keep such stamps for 
that purpose in stock. The stamps shall be prepared by the 
commissioner and sold by him to the parties required by law 
to handle the same. The persons for whom the prescriptions 
are given and the persons making the affidavit shall pay for the 



6. § 54. 

7. § 12. As to false affidavit by minor, see Va. Code, § 3828a. 



RECORDS, AFFIDAVITS AND STAMPS. 105 

stamps affixed thereto. All money received by the commissioner 
from the sale of stamps or otherwise under the act shall be paid 
into the treasury of the state, and shall there be accounted for 
as a> separate fund. 8 

The question has been asked, which of the duplicate originals 
of the prescriptions and affidavits is required to be stamped, that 
kept by the druggist or carrier or that filed with the clerk of the 
court? The requirement of the stamp is solely for the purpose 
of raising revenue and not of adding dignity or formality to the 
prescription or affidavit, nor is it necessary to the validity thereof. 
The provisions of the act requiring records to be kept by drug- 
gists and carriers and the provisions requiring filing with the 
clerk of the court are both complied with by the record or filing 
of one of the originals without stamp. The question may then 
be answered that it is immaterial whether the prescription or 
affidavit filed with the clerk bears the cancelled stamp. 

8. § 67. 



XI. Commissioner of Prohibition, Deputies, Inspectors 
and Attorneys. 

§ 97. In General. 

§ 98. Election. Qualification. Suspension and Salary. 

§ 99. Powers and Duties. 

§ 100. Deputies and Inspectors. 

§ 101. Attorneys Assisting Commissioner. 

§ 97. In General. 

Whenever the word "commissioner" is used in the act it shall 
mean the commissioner of prohibition. 1 

§ 98. Election, Qualification, Suspension and Salary. 

Election. — "The general assembly in session when this act is 
rl and the general assembly to assemble even* four years 
thereafter shall elect a commissioner of prohibition. 

Bond. — Before entering upon the duties of his office the com- 
missioner shall give a bond to be approved by the attorney-gen- 
eral in the penalty of ten thousand dollars for the faithful per- 
formance of his duties. 3 

Term of Office. — The term of office of the commissioner is 
four years, commencing on the first day of September, 1916, 4 
or until his successor shall have been elected and qualified. 5 

Suspension and 1'acancy. — The governor of Virginia by au- 
thority- vested in him by sections seventy-three and seventy-four 
of the constitution shall have the power to suspend the commis- 
sioner from office for misbehavior, incapacity, neglect of official 
duty- or acts performed without due authority of law. but in 
any case in which this power is so exercised, the governor shall 



See ante. "Commissioner of Prohibition," § 19. 

2. ^ :; s. § 32 

4. § 32. 

5. Va. Const *3; 1 Va. Law Reg.. X. S.. 415. 

[106] 



COMMISSIONER OF PROHIBITION, ETC. 107 

report to the general assembly at the beginning of the next ses- 
sion thereafter the fact of such suspension, and the cause thereof ; 
whereupon the general assembly shall determine whether such 
commissioner shall be restored or finally removed, and the gov- 
ernor shall have the power during the recess of the general as- 
sembly, to appoint pro tempore a successor to the commissioner ; 
but his appointment to such vacancy shall expire at the end of 
thirty days after the commencement of the next session of the 
general assembly, except as herein provided the general assembly 
shall fill by election any vacancy in the office of commissioner, 
which election shall be for the unexpired term. 6 In case of any 
vacancy in the office of commissioner during a recess of the 
general assembly, by the death or resignation of the commis- 
sioner, the governor shall fill such vacancy by the appointment 
of a successor whose term of office shall expire thirty days after 
the commencement of the next session of the general assembly 
sitting after the occurrence of such vacancy. 7 

Salary. — The salary of the commissioner of prohibition shall 
be $3,500 per annum. 8 All fees received by him are required to 
be paid into the state treasury. 9 

§ 99. Powers and Duties. 

To Act as Head of Department. — While the act does not ex- 
pressly state the actual creation of a department of prohibition, 
it does speak of the work o-f the department and is to be construed 
as'creating such department, of. which it is the power and duty 
of the commissioner of prohibition to act as chief. 10 

To Enforce Act. — It shall be the duty of the commissioner, in 
person or by his deputies and inspectors, to superintend the en- 
forcement of all the provisions of the act, and the laws of the 
state and ordinances and municipalities concerning the traffic 
in ardent spirits. 11 As such is made the duty of the commis- 



6. § 32. 

7. § 32. See 1 Va. Law Reg., N. S., 421. 

8. § 32. 9. § 67, 
10. See §§ 32, 33. 11. § 34. 



108 THE VIRGINIA PROHIBITION ACT. 

sioner, his deputies and inspectors, the act must necessarily be 
construed to empower such officers to enforce the act, laws and 
ordinances. This provision of the act will doubtless be fruitful 
of various constructions and possibly of much litigation. There 
is no limitation upon the power of the commissioner or his depu- 
ties and inspectors, except the implied restriction that they must 
be acting in the enforcement of the act. If they so act, the per- 
son questioning their authority must find some other provision 
of the act, the constitution of the state or of the United States, 
or some other statute upon which to base his contention. The 
imposition of such great duty upon the officers, by implication, 
makes them all powerful. To the provision which empowers 
the commissioner and his deputies and inspectors to superintend 
the enforcement of the act, there is the exception that nothing 
in the act shall be construed as taking from the attorneys for the 
commonwealth, sheriffs or other officers any of the powers now 
conferred upon them, except as in the act provided. 12 

To Sell Stamps. — The commissioner shall prepare all stamps 
required to be affixed to prescriptions and affidavits and sell the 
same to the parties required by law to handle them, and all 
money received by the commissioner from the sale of such 
stamps shall be paid into the treasury of the state. 13 

To Pay Funds into Treasury. — The act requires that all money 
received by the commissioner for fees, 14 stamps 15 or otherwise 
under the provisions of the act shall be paid into the treasury of 
the state and shall there be accounted for as a separate fund. 

To Expend Funds. — The commissioner has power to expend 
funds from the appropriation made for the conduct and mainte- 
nance of his department, and pay compensation to and expenses 
of deputies, inspectors, attorneys and such other helpers as may 
be necessary in the performance of the duties of his office and 
employed by him, but he must keep such compensation and ex- 
penses within the limits of the appropriation. 16 



12. § 34. 13. § 66. 

14. § 36. 15. § 67. 

16. § 33. 



COMMISSIONER OF PROHIBITION, ETC. 109 

To Report to Governor. — The commissioner shall make an an- 
nual report to the governor, which shall, by the governor, be 
biennially reported to the general assembly ; such report shall give 
in detail the expenditure of all public monies and the work of 
his department, together with such recommendations for new 
or additional legislation in reference to his powers and duties as 
he may deem expedient. 17 

To Appoint find Remove Deputies and Inspectors. — The com- 
missioner shall have the power to appoint such deputies and 
inspectors as may be necessary in performing the duties of his 
office, but he must keep their compensation and expenses within 
the limits of the appropriation for the conduct and maintenance 
of his department, and such deputies and inspectors shall be 
removed at the pleasure of the commissioner. 18 

To Employ Attorney. — The commissioner has power when- 
ever he deems it necessary to employ such attorneys as may be 
necessary in performing the duties of his office. Whether this 
provision means attorneys permanently employed in the per- 
formance of the duties of his office or attorneys temporarily em- 
ployed to prosecute cases, is not clear, but easily bears the con- 
struction that it means both. The particular provision empowers 
the commissioner to remove deputies and inspectors at his pleas- 
ure, but does not so provide with regard to attorneys, but under 
the rule that the power to appoint for an indefinite period in- 
cludes the power to remove, the commissioner can doubtless re- 
move an attorney at his pleasure or, at least, for cause. 19 If not 
himself an attorney at law, the commissioner may associate with 
the attorney for the commonwealth an attorney representing his 
office in the prosecution of any complaint or case arising under 
the act. 20 

To Employ Other Helpers. — In addition to the deputies and 
inspectors and attorneys the commissioner has power when he 
deems it necessary to appoint such other helpers as may be nec- 



17. § 32. 

18. § 33. See post, "Deputies and Inspectors," § 100. 

19. See § 33. 20. § 34. 



110 THE VIRGINIA PROHIBITION ACT. 

essary in performing the duties of his office. 21 The only limita- 
tion upon his power is that he must keep their compensation and 
expenses within the limits of the appropriation in the act. 

To Inform as to Violations of Act. — The commissioner, his 
deputies and inspectors are required to diligently inform them- 
selves of all violations of the act, other laws of the state, and 
ordinances of cities concerning the traffic in ardent spirits, and 
make report thereof to the judge of the circuit, corporation or 
hustings court and to the commonwealth's attorney of the county 
or city in which such violations occur. 22 

To Request Attorney-General to Prosecute Case. — In cases 
where he may deem it advisable, the commissioner may request 
the attorney-general of the state, or one of his assistants selected 
by him, to take charge of and control the management of any 
complaint or case arising under the act, the attorney for the 
commonwealth acting with the commissioner, his attorney or the 
attorney-general as the case may be, provided that nothing in 
the act shall be construed as taking from the attorneys for the 
commonwealth any of the powers now conferred upon them ex- 
cept as provided in the act. 23 

To Appear before Grand Jury. — As in the case with the at- 
torney for the commonwealth, it is apparently unlawful for the 
commissioner of prohibition or his deputies and inspectors to go 
before the grand jury during their deliberations except when 
duly sworn to testify as witnesses, but whether or not they may 
advise the foreman of the grand jury or any member or members 
thereof in relation to the discharge of their duties, is uncertain. 24 

To Publish List of Holders of United States Revenue Tax. — 
The commissioner shall procure from the collector of internal 
revenue a list of all persons holding United States internal reve- 
nue tax receipts for the sale of ardent spirits then in force, and 
shall thereafter, on the first day of each month, procure the names 



21. § 33. 22. § 34. See also, § 48. 

23. § 34. 24. See Va. Code, § 3998. 



COMMISSIONER OF PROHIBITION, ETC. Ill 

of all persons who have been granted such tax receipts during 
the preceding month, and shall furnish to the attorney for the 
commonwealth, of every county and city in the state, the names 
of the, persons in his county or city holding such receipts, and 
shall publish a list of the names as procured by him, in a news- 
paper published in the city or county of their residence, and if 
there is no newspaper published in the county, then in some 
newspaper having general circulation in the county. 25 

To Make Arrests. — The commissioner, his deputies and in- 
spectors shall, for the purposes of arrest under the act, have 
the power of the sheriffs of the commonwealth, but nothing in 
the act shall be construed as taking from the sheriffs or other 
officers any of the powers now conferred upon them except as 
in the act provided. 26 The power conferred upon such officers, 
with a warrant to enter a building where there is reason to 
believe that the law relating to ardent spirits is being violated, 27 
apparently means for the purpose of seeking information and 
making search, but not for the purpose of making arrest. 27a 

To Enter and Search Buildings. — The act provides that the 
deputies and inspectors appointed by the commissioner shall 
have the power, with a warrant, to enter buildings where there 
is reason to believe that the law relating to ardent spirits is 
being violated, and such deputies and inspectors may call to 
their aid in making such search, any officer of the law whose 
duty it is to enforce the law prohibiting the sale of intoxicating 
spirits. 28 This section of the act does not provide that the 
commissioner himself may enter buildings and make search. 
While the occasion may never arise for the commissioner him- 
self to enter a building, it would seem that his powers are no 
less extensive than those of his deputies and inspectors, and if 
the necessity should arise for him to enter a building or to di- 



25. § 59. 

26. § 34. As to offering rewards, see Va. Code, § 4197. 

27. § 35. 

27a. See post, "Arrest," § 111. 

28. § 35. 



112 THE VIRGINIA PROHIBITION ACT. 

rect the entry thereof, certainly no one except the state could 
question his exercise of a power not possessed. 

To Administer Oaths and Take Affidavits. — The act provides 
that the deputies and inspectors appointed by the commissioner 
shall have the power to administer oaths and take the affidavits 
required by the act. 29 The act does not provide that the com- 
missioner shall have such power and the statement above in 
regard to his power to enter buildings is applicable here. 

To Examine Records. — The deputies and inspectors ap- 
pointed by the commissioner have power to examine the rec- 
ords required to be kept by the act, and in making such exami- 
nation may call to their aid any officer of the law whose duty it 
is to enforce the law prohibiting the sale of ardent spirits. 30 
The commissioner himself is not expressly empowered to ex- 
amine records, and reference is again made to his power to 
enter buildings. 

To Call Officers to Assistance. — The deputies and inspectors 
appointed by the commissioner have power, in making examina- 
tion of records to obtain information and in entering buildings 
where there is reason to believe the law relating to ardent spirits 
is being violated, to call to their aid any officer of the law whose 
duty it is to enforce the law prohibiting the sale of ardent 
spirits. 31 

To Receive Notice of Trial. — In any prosecution before a 
mayor or police justice, the commissioner of prohibition shall 
be notified by such mayor or justice, in time to attend the trial, 
and the commissioner, his deputies and inspectors, shall have 
the same power in respect to such cases that he has in cases be- 
fore the circuit court. 32 

To Associate with Attorney for Commonwealth. — The act 
provides that the commissioner, if an attorney at law, may as- 



29. § 35. 30. § 35. 

31. § 35. 

32. § 25. See post, "Notice to Commissioner to Attend Trial," § 
113. 



COMMISSIONER OF PROHIBITION, ETC. 113 

sociate himself with the attorney for the commonwealth in 
the prosecution of any complaint or case arising under the act. 33 
The wording of the statute is "this act," which probably must 
be construed to mean a prosecution arising under this particu- 
lar" act "and not under any other law of the state or ordinances 
of any city. This construction probably does not accord with 
what may be the presumed intent of the legislature, but the ex- 
press provision of the act must control. Another provision of 
the same section reads, that nothing in the act shall be con- 
strued as taking from the attorneys for the commonwealth any 
of the powers now conferred upon them except as in the act 
provided. 34 It is provided that if the commissioner conducts 
a case without assistance, a reasonable fee, which shall be taxed 
and collected as other costs, shall be allowed him, and it is 
provided that such fee shall be paid into the treasury o»f the 
state. 35 

As to Trials before Mayor or Police Justice. — In any prose- 
cution before a mayor or police justice, the commissioner of 
prohibition shall be notified by the mayor or justice, in time to 
attend the trial, and the commissioner, his deputies and in- 
spectors, shall have the same power in respect to such cases 
that he has in cases before the circuit court. 36 

To Sue to Unjoin Nuisance. — The commissioner, his depu- 
ties or inspectors, the attorney for the commonwealth, or any 
citizen of the county, or town or city, where such a nuisance as 
is defined in the act exists, or is kept or maintained, may, in 
addition to the remedies given in and punishment imposed by 
the act, maintain a suit in equity in the name of the state to 
abate and perpetually enjoin the same. 37 When the court 
shall continue the injunction for one year or make it perpetual, 
it shall allow the commissioner, when he conducts the case with- 
out assistance, a reasonable fee, but such fee shall be paid into 
the treasury of the state. 38 



33. § 34. 34. § 34. 

35. § 36. 36. § 25. 

37. § 36. . 38. § 36. 



114 the virginia prohibition act. 

§ 100. Deputies and Inspectors. 

Appointment and Removal. — The commissioner shall have 
the power to appoint deputies and inspectors, and whenever he 
deems it necessary, employ attorneys and such other helpers as 
may be necessary in performing the duties of his office, but he 
must keep their compensation and expenses within the limits 
of the appropriation made for the conduct and maintenance of 
his department, and such deputies and inspectors shall be re- 
moved at the pleasure of the commissioner. 39 The act does not 
prescribe the qualifications of such appointees, but as they are 
state officers they must be citizens thereof and qualified to 
vote. 40 

Powers. — Many of the powers of the deputies and inspectors 
are the same as the powers of the commissioner. The deputies 
and inspectors appointed by the commissioner of prohibition 
provided for in the act shall have the power to administer oaths, 
take affidavits and examine records, and, with a warrant, enter 
buildings where there is reason to believe that the law relating 
to ardent spirits is being violated. Such deputies and inspectors 
may call to their aid in securing such information and in mak- 
ing such search, any officer of the law whose duty it is to en- 
force the law prohibiting the sale of ardent spirits. 41 When 
any deputy or inspector shall have reason to suspicion that ar- 
dent spirits are being transported in any wagon, buggy, auto- 
mobile or other vehicle, contrary to law, he shall have the right 
and it shall be his duty to obtain a warrant to search such 
vehicle and seize any and all ardent spirits found therein which 
are transported contrary to law, and shall take such vehicle and 
team thereto, other than a conveyance owned and used by a 
railroad, steamboat or express company, and shall also arrest 
any person in charge of such vehicle and report the seizure and 
arrest to the attorney for the commonwealth and to the com- 
missioner in writing. 



39. § 33. 

40. Va. Const., § 32. 

41. § 35. 



commissioner of prohibition, etc. 115 

§ 101. Attorneys Assisting Commissioner. 

The commissioner has power, whenever he deems it neces- 
sary, to employ attorneys to assist in performing the duties of 
his office and may compensate them for their services. The 
same section provides that the commissioner may, at his pleas- 
ure, remove certain of his appointees, but the provision does 
not mention attorneys. But under the principle that the power 
to appoint for an indefinite period embraces the power to re- 
move, it would seem the commissioner has such power. 42 The 
provision for fees to certain attorneys conducting a suit to en- 
join a nuisance, does not apply to attorneys assisting the com- 
missioner. 43 

42. § 33. 43. § 36. 



XII. Enforcement of Act. 

§ 102. Appropriation for Enforcement. 
§ 103. Powers and Duties of Officers to Enforce. 
§ 104. Enforcement by Enactment of Ordinances. 
§ 105. Enforcement by Closing Building. 
§ 106. Enforcement by Injunction. 
§ 107. Enforcement by Punishment for Contempt. 
§ 108. Enforcement by Destruction of Ardent Spirits and Con- 
tainer and Sale of Wagon, etc. 
§ 109. Enforcement by Criminal Prosecution. 

§ 110. Searches and Seizures. 

§ 111. Arrest. 

§ 111 (1) Statutory Provisions. 

§ 111 (2) Warrant. 

§ 111 (3) Who May Be Arrested. 

§ 111 (4) W 7 ho May Make Arrest. 

§ 111 (5) Manner of Making Arrest. 

§ 111 (6) Custody and Examination of Prisoner. 

§ 112. Bail and Bond for Good Behavior. 

§ 113. Notice to Commissioner to Attend Trial. 

§ 114. Limitation of Actions. 

§ 115. Jurisdiction and Venue. 

§ 116. — — ■ Indictment. 

§ 117. Burden of Proof and Prima Facie Evidence. 

§ 118. Evidence. 

§ 118 (1) Procuring Evidence. 

§ 118 (2) Admissibility of Evidence. 

§ 118 (3) Weight and Sufficiency of Evidence. 

§ 119. Variance. 

§ 120. Witnesses. 

§ 121. Instructions. 

§ 122. Trial by Jury. 

§ 123. -. Dismissal. 

§ 124. Costs. 

§ 125. ■ Appeal. 

§ 126. Punishment. 

§ 102. Appropriation for Enforcement. 

For the purpose of carrying the act into effect there is appro- 
priated out of any money in the treasury of Virginia not other- 
wise appropriated, for the year ending February twenty-eighth, 

[116] ' 



ENFORCEMENT OE ACT. 117 

nineteen hundred and seventeen, the sum of twenty-five thousand 
dollars, and for the year ending February twenty-eighth, nine- 
teen hundred and eighteen, any unexpended balance on hand 
March first, nineteen hundred and seventeen, of the appropria- 
tion of twenty-five thousand dollars for the year ending Febru- 
ary twenty-eighth, nineteen hundred and seventeen, and the fur- 
ther sum of twenty-five thousand dollars. 1 

§ 103. Powers and Duties oe Officers to Enforce. 

The act provides that it shall be the duty of all sheriffs, attor- 
neys for the commonwealth, deputies, constables and justices of 
the peace of the counties and cities, and all mayors, sergeants 
and their deputies, justices of the peace and police of the cities 
and towns of the state to enforce all of the provisions of the act ; 
and the neglect, failure or refusal of any of such officers so to 
do shall be deemed misfeasance in office. 2 

The act shall not be construed to take from sheriffs and other 
officers any of their existing powers, except as in the act pro- 
vided. 3 There are no provisions in the act to which this excep- 
tion refers except grants of powers to other officers, and these 
grants do not take away existing powers of other officers. 

Attorney for Commonwealth. — It is the duty of the attorney 
for the commonwealth of. any county or city to enforce all the 
provisions of the act, and the neglect, failure or refusal of such 
officer so to do shall be deemed misfeasance in office. 4 The act 
provides that, if the attorney for the commonwealth has reason 
to believe that there has been any violation of any of the pro- 
visions of the act, he shall take such action as may be necessary 
to bring the offender to justice; 5 and that it is the duty of the 
attorney for the commonwealth of the county or city in which it 
occurs, to faithfully investigate and prosecute all violations of 



1. § 75. 

2. § 55. As to Mayor and Police Justice, see § 25; post, "Juris- 
diction and Venue," § 115. 

3. § 34. 4. § 55. 
5. § 47. 



i:s 



:--.- :.:: :t::r:: :: his rhir r :: z'r.t ;uire ::' :l:e ::_:r: :y z'r.t 
com mi ssioner his deputies and inspectors. The latter provision 
: : the ::::.:...:. ::' : : ; : :: ::: ; " :.z\ ill :hese set-ions are 
read together they mean that the attorney for the commonwealth 
shall take steps to prosecute violations of the act, by bringing the 
:~::':r: :: ;usr:e :r ;:htr~ist ~'r_±~ r.t his rttstn :: :elie"e 
the act has been violated or when violations thereof have been 
:r::r:: :: 1:5 : hi :t :r :: :r.r i^rt : : :r.r :: ur: As :he ; .: irt 
of the court can determine whether or not violations have been 
rtr-zzzti z: :::.-----■■ :\\ •:::: :hi: ht has ; : tr :: : n.rtm: :he 
prosecuting attorney to investigate and prosecute. 

Z'r.t in: mty ::r :lat :~ z'r.t lis: :: 

-lilies :: :e::::i ; 
shall :r:-: tt: i,rilns. 
.7:: it:::- : : / • • 

vided herein, for the violation of the provisions of the 
Ihe :: : — ey ::r zr.t :tl:h shall .s :::t:. is ::.:t - 

.-. -. : /.:.-. r::i::.:r.r ill : rts:n::i:::s :■.:: 1 ihiia i:s in: rt::r: : : tks 
required to be kept by any section of the act and filed in the 
:ltrk ; :zzz:t ::. . : - : :rts:ri;:::r.s ■—. iia vi:s 1:: 1 rt::r:s ire 
not made and kept according to the provisions of the a 
shall :al«:t ; ::h 1:: : : is nay '.-. r.t:tssiry :: 'zr.zzz z'r.t .zztr.itr 

Ih.r st::i:n :f :r.e 1:: rtla: r.z'r.z :•:" :he 

:: issMia:t . v - -. .:' : int-mtv rrtrtstnnr.r his hiit v.::h 

the attorney for the commonwealth in the prosecution of any 
list mliinr .■:■. ier z'r.t :: :: mains :l:t ;: - 
in : 7 : :: shall :«t :: :-:r :t: is :ikir.r :r:-m z'r.t zzz.rzt ::r :ht 
:;:::::; a nta my ::" z'r.t z<y.-:trs :.: ::r.ztrrti rz.r. him ex- 
cept is provided in the act.* The exception ''as herein pro- 
vided/' and the other provisions of the section and all other 
st:: .:::: : t: ma: i: ; me : : ::' sum mtmey :: :':-ey m: 



::r :ht : : ~ r. : r- ri':h 

:t :hr t::!i:; :- : : =-y 



ENFORCEMENT OF ACT. 119 

assist the commissioner and his deputies and inspectors within 
the scope of their authority and when requested by them. 10 
There is no doubt that the act will be construed as giving the 
commissioner and his deputies and inspectors authority to direct 
the attorney for the commonwealth to institute proceedings for 
the prosecution of violations of the act. This construction is jus- 
tified by the wording of the act and is strengthened by its pur- 
pose and object and the fact that the commissioner and his depu- 
ties and inspectors are created and given such comprehensive 
powers to enforce the act. If the attorney for the common- 
wealth should refuse to act, he would be guilty of misfeasance 
in office. 

The attorney for the commonwealth shall not have power to 
dismiss any prosecution over the objection of an assistant prose- 
cuting attorney, the commissioner of prohibition or the attorney 
representing his office, or the attorney general or his assistant, 
when any such officials are associated in the prosecution, until 
the reasons in writing of the attorney for the commonwealth for 
such dismissal, with the objections thereto by the associate coun- 
sel in writing, shall have been filed, argued and fully considered 
by the court. 11 

The attorney for the commonwealth may sue out an injunc- 
tion to abate and enjoin a nuisance under the act, and, in case 
he conducts the suit without assistance and the injunction "is 
continued for one year or made perpetual, he is entitled to rea- 
sonable attorney's fees, which may be taxed and collected as other 
costs. 12 

Assistant Prosecuting Attorney. — Any citizen or organization 
within the state may employ an attorney to assist the attorney 
for the commonwealth in the prosecution of any case under the 
act, and such attorney shall be recognized by the attorney for 
the commonwealth and the court as associate counsel in the 
case. 13 Such attorney may be employed by any citizen or or- 



10. 


§ 


34. 












11. 


§ 


44. 


See 


post, 


"Dismissal, ' : 


1 § 123. 




12. 


§ 


36. 








13. § 


44. 



120 THE VIRGINIA PROHIBITION ACT. 

ganization. By organization is evidently meant an association 
of citizens of the state and possibly a corporation of the state. 
Other than that he shall be recognized by the attorney for the 
commonwealth and the court, his powers are not denned. He 
has powers similar to an assistant prosecuting attorney and as- 
sociate counsel in any other case. The right to direct the prose- 
cution remains in the hands of the attorney for the common- 
wealth or principal counsel. The act further provides that no. 
prosecution shall be dismissed over the objection of such asso- 
ciate counsel until the reasons in writing of the attorney for the 
commonwealth for such dismissal, with the objections thereto 
by the associate counsel in writing, shall have been filed, argued 
and fully considered by the court. 14 

Attorney Suing Out Injunction. — A citizen may employ an at- 
torney to prosecute a bill in equity to enjoin a nuisance under the 
act, and such attorney is entitled to a reasonable fee, which may 
be taxed and collected as other costs, when the injunction is 
continued for one year or made perpetual. 15 

Sheriffs, Constables, Sergeants and Police. — The act provides 
that it shall not be construed as taking from sheriffs or other 
officers any of the powers now conferred upon them except as 
in the act provided. 16 It is the duty of all sheriffs, deputies and 
constables of the counties and cities and sergeants and police of 
the cities and towns of the state to enforce all the provisions of 
the act, and the neglect, failure or refusal of such officers so to 
do shall be deemed misfeasance in office. 17 For all official serv- 
ices rendered in connection with the provisions of the act all such 
officers shall be entitled to the same fees as are now allowed by 
law in other misdemeanor and felony cases. 18 

Justices of Peace and Police Justices. — It is made the duty of 
justices of the peace and police justices to enforce all the provi- 
sions of the act, and any neglect or refusal so to do is a mis- 
feasance in office. 19 



See post, "Dismissal," § 123. 

16. § 34. 
18. § 55. 



14. 


§ 44. 


15. 


§ 36. 


17. 


§ 55. 


19. 


§ 65. 



ENFORCEMENT OF ACT. 121 

Commissioner and Deputies and Inspectors. — The act provides 
that the commissioner and his deputies and inspectors shall, for 
the purposes of arrest under the act, have the power of sher- 
iffs. 3 ^ The deputies and inspectors appointed by the commis- 
sioner shall have power, with a warrant, to enter and search any 
building where there is reason to believe that the law relating 
to ardent spirits is being violated, and may call to their aid any 
officer whose duty it is to enforce the laws relating to ardent 
spirits. 21 

Commissioner of Agriculture. — "It shall be the duty of the 
State commissioner of agriculture, at the written request of any 
officer, State, county or municipal, including the commissioner 
of prohibition charged 'with the execution of this act and other 
laws of this State concerning ardent spirits as herein defined, to 
cause to be analyzed any mixture supposed to contain ardent 
spirits as herein defined, and to return to the officer making the 
request a certificate of the chemist showing such analysis. For 
making said analysis the department of agriculture shall be paid 
the actual cost thereof, including the time of the chemist and 
the chemicals required in making said analysis. Said costs to 
be paid by the commissioner of prohibition out of the funds 
herein appropriated upon an itemized statement of the com- 
missioner of agriculture rendered at the end of each month." 22 

§ 104. Enforcement by Enactment of Ordinances. 

All cities and towns are granted full power to pass all ordi- 
nances not repugnant to the constitution and laws of the state, 
embracing such provisions of the act as are applicable and fur- 
ther to prohibit the manufacture, transportation, sale, keeping or 
storing 'for sale, advertising or exposing for sale, receiving, giv- 
ing away or dispensing of ardent spirits, and to provide adequate 
penalties therefor. 23 This provision is constitutional and does 
not constitute an unlawful delegation of legislative power to the 



20. § 34. 

21. § 35. For full powers of deputies and inspectors, see ante, 
"Commissioner of Prohibition," § 99. 

22. § 30^. 23. § 27. 



122 THE VIRGINIA PROHIBITION ACT. 

cities and towns. Under the general welfare clause of their 
charters the cities probably already possessed such power. 24 

The grant by the legislature to the council of the city of Dan- 
ville of the right to grant or refuse licenses to all sellers of wine, 
or spirituous, or fermented liquors, under such regulations as 
it may prescribe, confers upon the council absolute control of 
the subject, and power to wholly suppress the privilege, or to 
grant it under such restrictions as it may deem proper. Whether 
the regulations are reasonable or not is not the subject of ju- 
dicial investigation or inquiry. The subject rests wholly in the 
discretion of the council. 25 

§ 105. By Closing Building. 

All houses, boat houses, buildings, tents, club, fraternity and 
lodge rooms, boats, cars and places of every description, includ- 
ing drug stores, where ardent spirits are manufactured, stored, 
sold, vended, dispensed, bartered, given away, furnished or used 
contrary to law by any scheme or device whatever, shall be held, 
taken and deemed common nuisances. Any person who shall 
maintain, or shall aid or abet, or knowingly be associated with 
others in maintaining such common nuisances, shall be guilty 
of a misdemeanor, and judgment shall be given that such house, 
building, tent, boat house, boat, car or other .place, or any room 
or part thereof, be closed up, but the court may upon the owner 
giving bond in the penalty of not less than five hundred dollars, 
and with security to be approved by the court, conditioned that 
the premises shall not be used for unlawful purposes, or in vio- 
lation of the provisions of the act, turn the same over to its 
owner. 26 

§ 106. Enforcement by Injunction. 

Statutory Provisions. — The act provides for proceeding by bill 
in equity to abate and enjoin a house, boat, etc., defined by the 
act to be a nuisance, in which ardent spirits are sold, dispensed, 



24. Martin v. City of Rome, 83 S. E. 872, 15 Ga. App. 496. 

25. City of Danville v. Hatcher, 9 Va. Law Reg. 331. 

26. § 31. See post, "Enforcement by Injunction," § 106. 



ENFORCEMENT OE ACT. 123 

etc. 27 Similar statutory provisions have been held valid and 
constitutional in other states. 28 

Nature of Proceeding. — While the proceeding is for the en- 
forcement of a criminal law, it is in its nature civil, and as stated 
in the act, it is in addition to the remedies given in and punish- 
ment imposed by the act. 29 

Grounds for Injunction.— An injunction may issue where a 
nuisance as defined in the act exists or is kept or maintained, 
where any ardent spirits are sold, bartered, given away, dis- 
tributed, dispensed or stored or used in any house, building, 
boathouse, club room, fraternity room, lodge room, boat, tent, 
or any place contrary to the laws of the state. 30 This procedure 
is absolutely dependent upon the provisions of the statute au- 
thorizing it, and lies only when within those provisions. It does 
not extend to violations of the act generally or in ways other 
than those designated by this provision. Neither this particular 
provision nor other laws confer upon courts of equity the gen- 
eral power to enforce criminal laws by injunction. 31 In those 
instances in which injunction lies to prevent conduct amounting 
to a nuisance abatable by such remedy, it is limited to unlawful 
acts and is not available as a means of prevention of lawful acts. 
Only so much of such conduct as is unlawful can be restrained. 
State v. B. & O. R. Co. (W. Va.), 89 S. E. 288. The nuisance 
must exist at the time of the institution of proceedings for in- 
junction, and the writ will not issue if it appears that the nui- 
sance has been voluntarily abated or discontinued. 32 The writ 
may, however, issue where there is reason to prevent a renewal 



27. § 36. See § 31; 3 Va. Code, p. 780; ante, "Enforcement by Clos- 
ing," § 105. 

28. Davis v. Auld, 96 Me. 559, 53 Atl. 118; Laughel v. Bushnell, 197 
111. 20, 63 N. E. 1086, 58 E. R. A. 266; Topeka v. Raynor, 8 Kan. App. 
279, 55 Pac. 509. 

29. State v. Collins, 68 N. H. 299, 44 Atl. 495; Legg v. Anderson, 
116 Ga. 401, 42 S. E. 720. But in Jelinek v. State (Tex. Civ. App.), 
115 S. W. 908, the proceeding is held to be quasi criminal. 

30. § 36. See § 31. 

31. State v. Baltimore & O. R. Co. (W. Va.), 89 S. E. 288. 

32. Patterson v. Nickol, 115 Iowa 283, 88 N. W. 323. 



124 THE VIRGINIA PROHIBITION ACT. 

of the nuisance. 33 It would certainly seem that under the act 
the nuisance must exist at the time of the institution of the pro- 
ceedings, for the act reads "that ardent spirits are sold,''' etc. 

Who May Maintain Suit. — The act provides that the commis- 
sioner, his deputies or inspectors, the attorney for the common- 
wealth or any citizen of the county, town or city where the nui- 
sance exists or is kept or maintained may maintain a suit in eq- 
uity- in the name of the state to abate and enjoin such nuisance. 34 
Such persons must show that they come within the provision of 
the act. 35 According to the decisions in other states the right 
to institute the proceeding exists independently in each of such 
persons who have the right to complain, and a private citizen may 
maintain the proceeding without the consent of the common- 
wealth's attorney or the commissioner or his deputies and in- 
spectors. An attorney employed by such citizen may prosecute 
the proceeding without an appearance by the commonwealth's 
attorney. 36 

Against Whom Suit May Be Maintained. — The act provides 
that the injunction shall enjoin and restrain the owner, tenants, 
their agents, employees, servants, and any person connected with 
the house, building or other place named in this section, and all 
persons whomsoever from selling, bartering, giving away, dis- 
tributing, dispensing, storing, or using ardent spirits in such 
house, building, boat house, club room, boat, tent, or other place 
named in this section, and shall also restrain all persons from 
removing any ardent spirits then on such premises until the fur- 
ther order of the court. 37 

Jurisdiction. — In the absence of a statute conferring it. equity 
has no jurisdiction either civil or criminal, to abate a public nui- 
sance, at the instance of an individual or the state, not affect- 
ing or injuring the enjoyment of property or other personal 
rights. Injunction is not a remedy for the enforcement of crim- 



33. Judge v. Kribs, 71 Iowa 33, 32 X. W. 324. 

34. § 36. 

35. Spence v. Feucher (Tex. Civ. App.), 151 S. W. 1094. 

36. See Maloney v. Traverse. S7 Iowa 306. 

37. § 36. 



ENFORCEMENT OF* ACT. 125 

inal laws generally. State v. B. & O. R. Co. (W, Va.), 89 S. E. 
288. But the act provides that a court of equity, or the judge 
thereof in vacation, of the county or city where the nuisance ex- 
ists has jurisdiction of the proceeding. The court or judge in 
vacation may continue or make perpetual the injunction. 38 

Bill.— In every case where the bill charges, on the knowledge 
or belief of complainant, and is sworn to by two reputable citi- 
zens, that ardent spirits are sold, bartered, given away, dis- 
tributed, dispensed or stored or used in any house, building, 
boat house, club room, fraternity room, lodge room, boat, tent, 
or any place contrary to the laws of the state, an injunction shall 
be granted as soon as the bill is presented to the court or judge 
in vacation, and no bond shall be required. 39 ' The bill must al- 
lege (1) the unlawful acts of selling, giving away, etc.; 46 (2) 
the house, boat, etc., where the unlawful acts are maintained ; 41 
and (3) the owners, tenants, etc., conducting such unlawful acts, 
and must connect such persons with the unlawful acts. 42 

Evidence.-^— The provision of the act relating to burden of 
proof and prima facie evidence reads, "in any provision or prose- 
cution under this act," which clearly shows that such section 
applies to the proceeding by injunction. 43 Where the respondent 
rebuts such presumption, it is not necessary for the complainant 
to make out his case beyond a reasonable doubt, but a preponder- 
ance of the evidence is sufficient. 44 

Hearing and Issuance. — It would seem that a temporary in- 
junction to restrain a nuisance may be issued in an ex parte pro- 



38. § 36. See Buck v. Ellenbolt, 84 Iowa 394, 51 N. W. 22, 15 L. 
R. A. 187. 

39. § 36. See Soto v. State (Tex. Civ. App.), 171 S. W. 279. 

40. Cohen v. King Knob Club, 55 W. Va. 108, 46 S. E. 799. 

41. State v. Reno, 41 Kan. 674, 21 Pac. 803. 

42. Commonwealth v. Gallagher, 145 Mass. 104, 13 N. E. 359. See 
also Jelinek v. State (Tex. Civ. App.), 115 S. W. 908; Spence v. 
Fenchler (Tex. Civ. App.), 151 S. W. 1094; Soto v. State (Tex. Civ. 
App.), 171 S. W. 279. 

43. See post, "Burden of Proof and Prima Facie Evidence," § 117. 

44. Davis v. Auld, 95 Me. 559, 53 Atl. 118. 



1 . THE VIRGINIA PROHIBITION ACT. 

ceeding upon a satisfactory showing to the court by affidavits. 45 
The injunction may be dissolved where the respondent shows 
good cause against it 46 The act provides: Upon the hearing 
of the cause, when it shall have been matured and set for hear- 
ing as required by law, upon deposition of witnesses, document- 
ary and oral evidence, if the court or judge in vacation, shall be 
satisfied that the material allegations of the bill are true, al- 
though the premises complained of may not be then unlawfully 
used, it or he shall continue the injunction against such house, 
building or place, if it shall be a drug store for one year, and in 
all other cases the injunction shall be perpetual. 47 

Punishment for Contempt. — Any person violating any of the 
provisions of the injunction granted under this section shall be 
summarily punished for contempt of court without the empan- 
nelling of a jury, by a fine of not less than one hundred nor more 
than five hundred dollars and confinement in jail not less than 
one nor more than six months 48 In a proceeding under this pro- 
vision the court is not called upon to consider the merits of the 
controversy, or whether the injunction was properly or improperly 
granted. It is sufficient that the injunction was granted, and 
that it is being violated by the defendant or his agent. 4 ** 

Costs and Attorney's Fees. — "Whenever the court upon the 
hearing of any cause in equity shall continue the injunction for 
one year or make it perpetual, it shall allow to the attorney for 
the complainant or the commissioner, or the attorney for the 
commonwealth, when he conducts the case without assistance, a 
reasonable fee. which shall be taxed and collected as other costs, 
provided that any fee allowed the commissioner shall be paid into 
the treasury of the state. 49 It would seem that if the respondent 



45. Powers : Winters, 106 Iowa 751. 77 X. W. 509. 

f& State Reymann, 48 \Y. Va. 307. 37 5 Z 591. 

47 J 36. 9& S 36. 

48a. Ft. Worth Driving Club v. Ft. Worth Fair Ass'n, 56 Tex. 
I: App. 162, 121 S. W. 213, 216, reversed and injunction reinstated 
in 103 Tex 34 

49. § 36. As to attornej s fees :r appeal see 5: ate v. Gifford, 
111 Iowa 648, 82 X. W. 1034. 



ENFORCEMENT eF ACT. 127 

is successful, costs may be taxed against the complainant where 
the suit was brought without probable cause or maliciously. 50 

§ 107. By Punishment for Contempt. 

A person violating the injunction provided for by the act to 
restrain a nuisance may be punished for contempt. 51 A person 
of intemperate habits or addicted to the use of any narcotic drug 
who fails or refuses to disclose from whom 'he received ardent 
spirits, shall be guilty of contempt and shall be fined not less than 
five dollars nor more than fifty dollars and be committed to 
jail for a period not exceeding thirty days. 52 

Article VI of the amendments to the constitution of the United 
States respecting a speedy and public trial by jury; Articles V 
and VI respecting the right of persons accused of crime to be 
confronted with the witnesses ; Article VIII respecting excessive 
fines, and cruel and unusual punishments; and Article XIV re- 
specting the abridgment of privileges, the deprivation of liberty 
or property without due process of law, and the denial of the 
equal protection of the laws, are not infringed by a state statute 
authorizing its courts, when a person violates an injunction re- 
straining him from selling intoxicating liquors, to punish him as 
for contempt by fine or imprisonment or both. 53 

§ 108. By Destruction of Ardent Spirits and Containers 
and Sale of Wagon, etc. 

T'he act provides that in any case where ardent spirits shall 
be seized they shall be destroyed and the containers sold or de- 
stroyed. 54 While this provision is in the section relating to 
transportation of ardent spirits in a wagon, automobile, etc., it 
is independent and general and applies to all seizures not other- 



50. Clark v. Riddle, 101 Iowa 270, 70 N. W. 207. 

51. See ante, "Enforcement by Injunction," § 106. 

52. § 41. See post, "Witnesses," § 120. 

53. Eilenbecker v. Plymouth County, 134 U. S. 31, 33 E. Ed. 801, 
cited in Eeisy v. Hardin, 135 U. S. 100>, 122, 34 E. Ed. 128, followed 
in Lyng v. Michigan, 135 U. S. 161, 34 E. Ed. 150. 

54. § 57. As to constitutionality, see ante, "Personal Eiberty and 
Private Property," § 6. 



128 THE VIRGINIA PROHIBITION ACT. 

wise provided for. This section does not provide the manner in 
which or by whose authority the ardent spirits shall be destroyed. 
It would therefore seem that the officer making the seizure may, 
in his discretion, unless directed to the contrary in the warrant, 
destroy such ardent spirits and sell or destroy its containers. It 
will generally be necessary in the enforcement of the act to pre- 
serve such spirits and containers as evidence. 

The above applies to the general provisions relating to seizures 
but not to the provision where the ardent spirits are seized in any 
room, building, boat, car or other place, searched under the pro- 
vision of the act. In such case the destruction of the ardent 
spirits shall be by order of court. The order of court is neces- 
sary. 55 In either case the ardent spirits may be destroyed and 
the containers sold or destroyed regardless of whether or not the 
owner or custodian is convicted for violation of the act. 

The act is silent as to the disposal of the proceeds from the 
sale of the containers, but as such property is by the act of 
seizure practically confiscated, it would seem that such proceeds 
are the property of the state. This is the apparent intent of the 
legislature, because there is no provision for the return thereof 
to the owner, as in case of the seizure of a wagon, automobile, 
etc., and because the officer or the court is given a discretion to 
either sell or destroy. 

Sale of JJ'agon, Automobile, etc. — The court wherein the con- 
viction is had for illegally transporting ardent spirits in any 
wagon, automobile, etc., contrary to law. shall, unless good cause 
to the contrary is shown by the owner, order a sale by public 
auction of the property seized, and the officer making the sale, 
after deducting the expense of keeping the animals and vehicles 
or automobiles, the fee for seizure and the cost of the sale, shall 
pay the proceeds to the officer authorized to receive fines, and 
the balance, if there is any. shall be paid to the owner. 56 

§ 109. Enforcement by Criminal Prosecution — § 110. 
Searches and Seizures. 

Even- justice of the peace, police justice, circuit or city judge 
55. § 28. 56. § 57. 



ENFORCEMENT OE ACT. 129 

and mayor of any city or town, upon complaint and information 
given under oath, that any person is manufacturing, selling, of- 
fering, exposing, keeping or storing for sale, barter, gift or use 
ardent spirits contrary to law, or that affiant has cause to believe 
and does believe that such ardent spirits are manufactured, or 
sold, etc., in" any house-, building, car, boat or other place, con- 
trary to the provisions of the act, shall issue his warrant requir- 
ing any person suspected to be brought before him, or some jus- 
tice of the peace, and the house, etc., to be searched and all ar- 
dent spirits found therein, all vessels, bar fixtures, screens, 
glasses, bottles, jugs and other appurtenances apparently used 
in the sale, keeping or storing of such ardent spirits, contrary to 
law, to be seized and held. 57 The deputies and inspectors ap- 
pointed by the commissioner shall have power, with a warrant, 
to enter buildings where there is reason to believe that the law 
relating to ardent spirits is being violated, and may call to their 
aid in making such search any officer w T hose duty it is to enforce 
the law relating to ardent spirits. 58 The act provides that where 
ardent spirits are being transported in any wagon, automobile, 
etc., contrary to the provisions of the act, the ardent spirits and 
such wagon, automobile, etc., shall be seized. 59 

Constitutionality. — These provisions are constitutional if they 
are reasonable and make due provision for a hearing for parties 
in interest. 60 The provisions do not authorize unreasonable 
searches, and if given the construction herein contended for, a 
hearing is granted to parties interested. In construing the consti- 
tutionality of these provisions, other provisions of the constitu- 
tion than the searches and seizures clause should be noticed in 
regard to the constitutionality of the provision relating to de- 
struction of the ardent spirits. Reasonableness in this connection 
is to be determined not so much by the invasion of the property 
and rights of the individual, as by the necessity for the search 



57. § 22. 

58. § 35. As to search of traveller, see "Arrest." 

59. § 57. 

60. State v. Stoffers, 89 Minn. 205, 94 N. W. 675; State v. Doremus 
(Ga.), 68 So. 605. 

—9 



130 THE VIRGINIA PROHIBITION ACT. 

and seizure in the enforcement of the law. If such act is rea- 
sonably necessary to the enforcement of the law, it is not unrea- 
sonable, although private rights are affected.' 31 

Places That May Re Searched. — Any house, building, car, boat 
or other place may be searched. The act contemplates a house, 
building, boat, or place in which persons may be perform- 
ing the forbidden acts, and a suit case, trunk, or other small 
container of ardent spirits or packages of ardent spirits, is not 
such a "place." 62 

Property Subject to Seizure. — Under the search warrant the 
act provides for the seizure of all ardent spirits, vessels, bar fix- 
tures, screens, glasses, bottles, jugs, and other appurtenances ap- 
parently used in the sale, keeping or storing of such ardent spirits, 
found in the house, etc.. searched. The acts makes no reference 
to the ownership of such property but merely provides that it be 
found in the house, etc. It is not necessary, therefore, that the 
person in whose possession it is found should be the owner. 
Such property may be seized in the hands of an agent, em- 
ployee or carrier. 63 As the act provides for the seizure of all 
ardent spirits, etc., found in the house, etc., whether or not de- 
scribed in the warrant, the officer in making the seizure is not 
limited to such property as is described in the warrant. The war- 
rant need not describe the ardent spirits, etc. with particularity. ' 4 
The places to be searched and the property to be seized must 
be within the jurisdiction of the court issuing the process, in 
order to confer jurisdiction. Xo court can subject property, 
outside of its jurisdiction, to its process.''"' 

Complaint or Information. — The act provides for the issue 
of the warrant upon complaint or information given under 



61. See ante. ''Private Property and Personal Liberty.*' § 6. 

62. Emsweller v. Wallace (W. Va.). SS S. E. 787. 

63. St. Louis, etc., R. Co. v. Gans. 69 Ark. 252. 62 S. E. S I 

64. See Commonwealth v. Intoxicating Liquors, 113 Mass. 13. But 
see State v. Smith. 54 Me. 33, contra. 

65. Douglass v. Insurance Co.. 13S X. Y. 290. 33 X. E. 938, 20 L. 
R. A. 118, 34 Am. St. Rep. 44S. See also. Kress v. Porter. 132 Ala. 
577. 31 South. 377. 



ENFORCEMENT OF ACT. 131 

oath that any person is, or that the affiant has cause to believe 
and does believe that any person is, manufacturing, selling, etc., 
ardent spirits contrary to the provisions of the act. The act 
does not provide who may make the complaint or information. 
Such complaints may therefore be made by any person who 
may make complaint or information for the issuance of war- 
rants generally. May it be done by an officer ? 66 

Form and Contents of Information or Complaint. — The only 
requisites required for the complaint or information by the 
act is the statement that any person is, or that the affiant has 
cause to believe and does believe that any person is, manu- 
facturing, etc., ardent spirits in any house, etc., contrary to the 
provisions of the act, and that such information or complaint 
must be given under oath. The complaint or information must 
show (1) the knowledge of the affiant that ardent spirits 
are being manufactured, etc., or that the affiant has cause to be- 
lieve and does believe such facts; (2) a statement of the unlaw- 
ful act or acts, as that the person is manufacturing or selling, 
etc., ardent spirits, and that the act is contrary to law; 6T (3) a 
description of the property and premises to be searched, with 
such precision and accuracy as the circumstances permit; 68 (4) 
it is probably necessary that the information or complaint al- 
leged that some particular person is manufacturing, etc., ardent 
spirits, but it is not necessary that such person be described 
with great particularity and it may be alleged that such person 
is unknown; but (5) it is not necessary, it would seem, to de- 
scribe particular ardent spirits, vessels, etc., nor ownership 
thereof. The decisions of other states, however, do require 
that the liquors be described. 69 The information or complaint 
must be verified by the oath or affirmation of the affiant. 



66. So held in State v. McCann, 67 Me. 372. 

67. State v. Thompson, 44 Iowa 399. 

68. Commonwealth v. Intoxicating Liquors, 146 Mass. 509, 16 X. 
E. 298. 

69. Commonwealth v. Intoxicating Liquors, 110 Mass. 416; State 
v. Lager Beer, 70 X. H. 454, 49 Atl. 570. 



132 THE VIRGINIA PROHIBITION ACT. 

Search Warrant. — The search and seizure provided for can- 
not be made except under a warrant, issued by a justice of the 
peace, police justice, circuit or city judge or mayor of a. city or 
town having jurisdiction, duly signed and sealed, and regular 
on its face, and reciting that it is founded upon the complaint 
or information, naming the complaint, and directing the officer 
to search the premises described and seize liquors found 
there, and may also include a direction to make arrests. The 
officer should be ordered to make due return of the warrant. 
The state constitution forbids the issuance of general, or John 
Doe, warrants. 70 The warrant must designate (1) the particu- 
lar house, building or place to be searched; 71 (2) the ardent 
spirits and fixtures sought, though not with particularity; and 
(3) the acts of some person in the house, building or other 
place in violation of law. 72 A warrant to search for intoxicat- 
ing liquors remains in force only for a reasonable length of time ; 
and an unexplained and hence apparently needless delay for 
three days in the execution of such a warrant is unreasonable 
and therefore unlawful. 73 A material variance between the 
complaint or information and the warrant invalidates the war- 
rant. 74 

Execution of Warrant. — The warrant should be executed by 
the officer to whom it is directed or other officer having legal 
authority to serve such warrant. 75 The act provides that the 
deputies and inspectors appointed by the commissioner shall have 
power to execute the warrant and may call to their aid any offi- 
cer whose duty it is to enforce the law relating to ardent spirits. 
The warrant may be executed at any hour of the day. 76 The act 



70. Va. Const, § 10. 

71. A search warrant, not describing and designating some partic- 
ular house, building, or place for search, is void. Emsweller v. Wal- 
lace (W. Va.), 88 S. E. 787. 

72. See Va. Code, 3951, 3953, 3956. 

73. State v. Guthrie, 90 Me. 448, 38 Atl. 363. 

74. Commonwealth v. Intoxicating Liquors, 115 Mass. 145. 

75. State v. Hall, 78 Me. 37. 

76. Commonwealth v. Hinds, 145 Mass. 182, 13 N. E. 397. 



ENFORCEMENT OE ACT. 133 

also provides that the deputies and inspectors may, with a war- 
rant, enter buildings where there is reason to believe that the 
law relating to ardent spirits is being violated, 77 and, in another 
section, that an officer or officers charged with the execution of 
a warrant may under certain circumstances break open and en- 
ter a house,- building, etc. The act reads: "If in any house, 
building, boat, car, or other place, as is hereinbefore mentioned, 
the sale, offering, storing or exposing for sale of ardent spirits, 
is carried on clandestinely, or in such manner that the person or 
persons engaged therein can not be seen or identified by the 
officer or officers charged with the execution of a warrant, under 
any section of this act, any such officer may, whenever it is nec- 
essary for the arrest or identification of the person or persons 
offending, or of seizing such ardent spirits, break open and enter 
such house, building, boat, car or place, or any room or part of 
any of them." 78 

Officer's Return. — The officer's return should recite his au- 
thority to execute it, and what was done under the warrant. It 
should not fail to recite and describe the ardent spirits seized and 
persons arrested. The return is admissible in evidence. 79 

Custody and Destruction of Property. — The officer issuing a 
warrant to search any house, etc., shall, in the same warrant, 
require the officer to whom it is directed, or who shall execute 
the same, to seize and hold all ardent spirits found therein, also 
all vessels, bar fixtures, screens, glasses, bottles, jugs and other 
appurtenances apparently used in the sale, keeping or storing of 
such ardent spirits, contrary to law. 80 The seizure must be made 
in pursuance of a direction in the warrant and ardent spirits 
must have been found in the house, etc., contrary to the provi- 
sions of the act. Section 57, in regard to the unlawful transpor- 
tation of ardent spirits in any wagon, automobile, etc., makes 
special provision as to the custody and disposal of property 
seized. 



77. § 35. 78. § 29. 

79. State v. Howley, 65 Me. 100. 

80. § 22. See Va. Code, § 3954. 



134 :hz :: ;:: : :-: ^:z:t: aci 

. " : : L r if A I — The section re- 

lating to the search of any hoi: 5 7 Etc provides dial ardent 
spirits found therein contrary :: the provisions ::' the act shall 
be seized and held. The seizure most be in pursuance of a iirec- 
tion to that effect in the warrant. 81 Another section ;: the 
provides that whenever arir nt ; irhs shaD - seized in any room, 
building-, boat, car or other place searched under the provisions 
of the act, they shall be iestrojed by order ::" dohtL 82 Fhe le- 
strn :~.ion of the arden: ; ; irhs and containers is _ of court, 

and the statute is seemingly clear that the court shall so order 
regardless of whether or not the defe s : I guilty of 

the offense ::' violating the act. The act re ill be de- 

stroyed" but further provides that it shall be by order of the 
court. It is the apparent intention of the .-_ - that the 

destruction shall be by orirr as a matter : roorse, and not in 
the discretion of the court or upon a hearing and determination. 
This is a very radical provision an I - ty may be 

tioned. In regard :: ird agon, 

mobile, etcL, it is provided that in ai azure 

the ardent spirits shall be lestroye the contai Id or 

kstroyed I sion retro s order of xrart 

These provisions in regard : it spirits 

when seized may . far-reaching \ and 

through snch pr : ■ 

- of arde :ut therr 

inal The home of the conseque 

rominent citizen m:- - therein 

seized and de^:r gh " :::inal 

prosecution easily and clearly prove that he does not have 
liquors for sale or for unlaw: m of the act 

rtainry one of the big g command of the commis- 

sioner, his de^ that is necessary t 

the home searched is to procure the issaarj of 

Ardent spirits kq I iolatioo of law are none the less liable 



82 \ 



ENFORCEMENT 'OF ACT. 135 

to forfeiture because the seizure thereof is wrongfully or illeg- 
ally made by an officer. 83 

Wrongful Seizure. — The act provides for the seizure of all ar- 
dent spirits found in the house, etc., contrary to law. If the 
ardent spirits, etc., are not kept in the house contrary to law, the 
seizure thereof would be wrongful. To enter a man's house and 
find ardent spirits in a lawful quantity and not being kept in 
violation of the law and to seize such ardent spirits would be 
wrongful, and in such case it is the right of the owner to have 
them returned to him. Whether or not the seizure would be 
wrongful because of a defective warrant, depends upon whether 
or not the warrant is absolutely void or merely voidable. Where 
the deputies and inspectors call to their aid any officer whose duty 
it is to enforce the law relating to ardent spirits and the deputies 
and inspectors are acting under a void warrant, it would seem 
that such officer is liable and it has been so held in another state. 84 
''Where a sheriff, under a writ of seizure issued by the law and 
equity court of his county, seized whiskey in transit to another 
county within such other county, such seizure was illegal, ren- 
dering the officer liable for trespass in the wrongful taking and 
for conversion of the property by taking it back to the levying 
county, since in attachment and seizure proceedings the res must 
be within the jurisdiction of the court issuing process." 85 

§ 111. Arrest — § 111 (1) Statutory Provisions. 

"Every justice of the peace, police justice, circuit or city judge 
and mayor of any city or town, upon complaint and information 
given under oath, that any person is manufacturing, selling, of- 
fering, exposing, keeping or storing for sale, barter, gift, or use 
ardent spirits contrary to law, or that affiant has cause to believe 
and does believe that such ardent spirits so manufactured, or sold, 
offered, kept or stored for sale, barter, gift, or use are in any 
house, building, car, boat, or other place, contrary to the provi- 



83. State v. Schoppe, 92 A. 867, 113 Me. 10. 

84. Cartwright v. Canade, 106 Tex. 502, 171 S. W. 696. 

85. Brown, etc., Co. v. McCullough (Ala.), 69 So. 924. 



136 THE VIRGINIA PROHIBITION ACT. 

sions of this act, shall issue his warrant requiring any person 
suspected to be brought before him. or some justice of the peace, 
and the said house, building, boat, car or other place to be 
searched, and if ardent spirits are found therein contrary to the 
provisions of this act, requiring the parties found in said house, 
building, boat, car or other place, to be arrested and brought 
before him or some justice of the peace, with such witoc 
as shall be named in the warrant, or whose names are endorsed 
thereon, to give evidence concerning said complaint, and shall, 
in the same warrant, require the officer to whom it is directed, 
or who shall execute the same, to seize and hold all ardent spirits 
found therein, also all vessels, bar fixtm reens, g~: 

bottles, jugs and other appurtenances apparently used in the 
sale, keeping or storing of such ardent spirits, contrary to law." 8€ ' 
"It shall be unlawful for any person to bring into the State 
from any point without the State, whether in his personal 'bag- 
gage or otherwise, within a period of thirty* days, more than one 
quart of ardent spirits, and any justice of the peace, police jus- 
tice, circuit judge or mayor of any city or town upon complaint 
and information given under oath that affiant has cause to believe 
and does believe that any person is violating this provision of 
this act shall issue his warrant directing such person and his 
baggage to be brought before him for examination in accordance 
with the provisions of dns ad ~ Where an officer has seized 
any wagon, automobile, etc., in which ardent spirits are being 
transported contrary to the provisions of the act. he shall arrest 
any person in charge of such wagon, automobile, e: . 

§ 111 (2) Warrant. 

rity for. — The act does not authorize an arrest in any 
case without a warrant. Its various sections relating to arrests 
require the officer to act under a warrant. Can an arrest without 
a warrant be made independent of the act and under the general 
law of the state? The general law is that, for felonies, or upon 



86. § 22. 87. § 39. 

88. § 57. 



ENFORCEMENT CTF ACT. 137 

reasonable suspicion of felony, and for misdemeanors committed 
in their presence and which constitute breaches of the peace, con- 
stables or police officers may arrest the offender without a war- 
rant and take him before a magistrate to be dealt with according 
to law; but, in general, in cases of misdemeanor such officers can 
not, any more than private persons, justify the arrest of the of- 
fender without a warrant, when the offense is not committed in 
his presence. 89 ' Peace officers may also, without warrant, arrest 
vagrants and drunken and disorderly persons, and detain them 
for action by the proper police magistrates. 90 These are offences 
committed in the presence of the officers. Where the offense is 
punishable only by fine or forfeiture not in excess of $20 no war- 
rant of arrest is necessary under the Code. 91 

The legislature may restrict, though not enlarge the cases in 
which a warrant is not required. Therefore, in cases in which 
a warrant is expressly required by the act, its provisions apply 
and the warrant is necessary; but, in cases where the act is si- 
lent, there is no reason why the general law should not apply. As 
stated in the general rule, the felony must have been committed 
or the officer must have a reasonable suspicion thereof, and the 
misdemeanor must have been committed in his presence and must 
be a breach of the peace. It is here necessary to inquire whether vio- 
lations of the act amount to breaches of the peace. "Breach of 
the peace" is a breach of the tranquility enjoyed by the citizens of 
a municipality or community where good order reigns among 
its members. Actual personal violence is not an essential ele- 
ment of the offense, but any wicked conduct of a guilty party, 
destructive of the peace of the citizens and of good morals, is 



89. A justice of the peace, or a mayor of a city or town having 
similar power, may himself apprehend or cause to be apprehended, 
by word only, any person committing a felony or breach of the 
peace in his presence; but this power extends no further. In all 
other cases he must issue his warrant in writing to apprehend the 
offender. Muscoe v. Com., 86 Va. 443, 10 S. E. 534. See also, Hill 
V. Smith, 107 Va. 848, 59 S. E. 475. 

90. Muscoe v. Con;., 86 Va. 443, 10 S. E. 534. 

91. Va. Code, § 4009. 



138 THE VIRGINIA PROHIBITION ACT. 

sufficient to establish such offense. 92 Under this definition cer- 
tain violations of the act, such as drunkenness, amount to a 
breach of the peace and the arrest may be made without warrant 
in cases not provided for by the act. 

There can be no lawful arrest without a warrant unless within 
both of the following exceptions : ( 1 ) where the express pro- 
visions of the act do not apply, and (2) where the offense is 
committed in the presence of the officers. All other arrests are 
unlawful. It has recently been decided in South Carolina that 
a person can not be convicted of illegally transporting ardent 
spirits in his trunk, upon evidence secured by opening the trunk 
with a key obtained by forcible search of his person without war- 
rant. 93 The officer making the arrest is guilty of false imprison- 
ment, and the unlawful arrest may be resisted. A person is en- 
titled to resist an illegal arrest, and if in doing so he kills the 
arrester, he is guilty only of manslaughter, unless the circum- 
stances show malice, in which case he is guilty of murder. 94 

Complaint or Information. — The warrant may be issued upon 
complaint or information under oath of violations of the act. 
The act provides for its issuance upon complaint or information 
given under oath, that any person is manufacturing, selling, of- 
fering, exposing, keeping or storing for sale, barter, gift, or use 
ardent spirits contrary to law, or that affiant has cause to believe 
and does believe that such ardent spirits so manufactured, or sold, 
offered, kept or stored for sale, barter, gift, or use are in any 
house, building, car, boat, or other place, contrary to the provi- 
sions of the act ; 95 and for its issuance upon complaint or infor- 
mation under oath that affiant has cause to believe and does be- 
lieve that any person is violating the provision of the act mak- 
ing it unlawful to bring into the state in his personal baggage 
more than one quart of ardent spirits a month. 96 Any person 



92. People v. Rounds, 67 Mich. 482, 35 N. W. 77, 79. See also, 
Davis v. Burgess, 54 Mich. 514, 20 X. W. 540, 542, 52 Am. Rep. 828. 

93. Blacksburg v. Beam (S. C.) L. R. A. 1916E, 714. 

94. Muscoe v. Comonwealth, 86 Va. 443, 10 S. E. 534. 

95. § 22. 96. § 39. 



ENFORCEMENT OF ACT. 139 

violating the act by transporting ardent spirits in any wagon, 
automobile, etc., may be arrested upon a warrant obtained by an 
officer. The complaint or information under the oath of the af- 
fiant is not necessary. The act in substance provides that, 
when any sheriff or sergeant or the deputy of either, or any 
constable or -police officer or deputy commissioner or inspector 
appointed by the commissioner, shall have reason to suspect that 
ardent spirits are being transported in any wagon, buggy, auto- 
mobile or other vehicle, contrary to law, he shall have the right 
and it shall be his duty to obtain a warrant, under which any 
person in charge of such wagon, automobile, etc., may be ar- 
rested. 97 

Issuance of Warrant. — Jurisdiction to issue the warrant is 
given to every justice of the peace, police justice, judge of cir- 
cuit, corporation or hustings court, and mayor of any city or town, 
having jurisdiction of the offense charged. 98 The provision of 
the act relating to arrests of persons bringing ardent spirits into 
the state in their personal baggage does not confer jurisdiction 
upon the judge of a corporation or hustings court. 99 Under the 
Code a warrant may be issued by a judge of a circuit or corpora- 
tion court in vacation. 1 

Form and Requisites. — The Virginia constitution forbids the 
issuance of general, or John Doe, warrants. 2 The warrant must 
describe the person sought to be arrested by name, 3 and must de- 
scribe the offense with which he is charged, though not with the 
same particularity required in indictments. 4 

§ 111 (3) Who May Be Arrested. 

Any person suspected of any violation of the act may be ar- 
rested. In addition, the officer charged with the execution of 



97. § 57. 98. § 22. 

99. § 39. 

1. Va. Code, § 3995. 

2. Va. Const., § 10. See Va. Code, §§ 3951, 3953, 3956. 

3. Well v. Jackson, 3 Munf. 458. 

4. Lacy v. Palmer, 93 Va. 159, 24 S. E. 930. 



140 THE VIRGINIA PROHIBITION ACT. 

a warrant to search any house, building, car, boat or other place, 
if ardent spirits are found therein, shall arrest all persons found 
in such house, etc. The persons arrested, together with such 
witnesses as shall be named in the warrant or whose names are 
indorsed thereon, shall be brought before the officer issuing the 
warrant or some justice of the peace to give evidence concerning 
the complaint. 5 While the warrant issues against the person 
suspected only, this provision enables the officer to take into 
custody all persons found in the house, car, boat or other place 
and all witnesses named in or indorsed on the warrant. This 
may be extremely embarrassing to persons so unfortunate as to 
be so found. 

Under another provision of the act any person suspected of 
bringing into the state more than one quart of ardent spirits a 
month may be arrested and taken, together with his baggage, 
before the officer issuing the warrant. 6 This section does not 
authorize the arrest of any other than the suspected person nor 
the taking of him before any other than the officer issuing the 
warrant. Under the provision in regard to transportation into 
the state of ardent spirits in a wagon, automobile, etc., the per- 
son in charge of such wagon, automobile, etc., may be arrested. 7 

. § 111 (4) Who May Make Arrest. 

The officers having power to make arrests in other cases can 
make arrests for violations of the act. 8 It is provided that the 
act shall not be construed as taking from sheriffs .or other offi- 
cers any of their existing powers. 9 As to the powers of such of- 
ficers, the act is cumulative. The commissioner of prohibition, 
his deputies and inspectors have the same power of making ar- 
rest under the act as have sheriffs. 10 If an arrest may be made 
without a warrant, as mentioned above, it may be made by a 



5. § 22. 6. § 39. 

7. § 57. 

8. As to arrests by railroad and street car conductors, see Clai- 
borne v. C. & O. R. Co., 46 W. Va. 363, 33 S. E. 262. 

9. § 34. 10. § 34. 



ENFORCEMENT OF ACT. 141 

private person upon his acquainting the person arrested with the 
cause of his arrest. 11 

§ 111 (5) Manner of Making Arrest. 

The arrest may be made at any time by day or night and on 
Sundavs and holidays. In making the arrest the officer may use 
such force as is necessary to secure and detain the accused. 12 
The act provides that officers charged with the execution of a 
warrant, under any section of the act, may, whenever it is neces- 
sary for the arrest or identification of any person offending, 
enter any house, building, boat, car or other place, where the 
acts in violation of law are carried on clandestinely. 13 This pro- 
vision is cumulative of existing law and does not restrict the offi- 
cer in any right he may have to enter any house, etc., under the 
general law, and therefore the restriction to the right of entry to 
houses, etc., where the acts are carried on clandestinely, means 
merely that in such case the officer has a right which is a cumula- 
tion and repetition of the existing right and not that he may not 
enter where the act is not clandestine. 

§ 111 (6) Custody and Examination of Prisoner. 

As to custody and examination of the person arrested, the 
general provisions of the Code apply. 14 

§ 112. Bail and Bond for Good Behavior. 

If upon examination of any person charged with the violation 
of any of the provisions of the act, it shall appear to the justice, 
judge, or mayor before whom the warrant is returned, that there 
is probable cause to believe the accused guilty, he shall be re- 
quired to enter into a recognizance in the penalty and with se- 
curity to be approved by the justice, mayor or judge to appear 
before the next term of the circuit, hustings or corporation court 
having jurisdiction, to answer any indictment found against 



11. State v. Stancill, 128 N. C. 606, 38 S. E. 926. 

12. Mesmer v. Com., 26 Gratt. 976. 

13. § 29. 

14. Va. Code, §§ 3960, 3966, 3969, 4106. 



:.■::.'-' ~~~:-\ i '-:.;. ~. : .-.iri-t :■: l i:;:: i:::~:Vr t:: 

::t:\- e;.:.. : ::::r :: " .'.t :r: ". : :: ; :•: : t l~ 
. : :m :i t :tt:: irrri :r : hi ::.: r. t :>:•:: i: : r: vt : :■-.- : r : : . t. 

.Lit :. 
::::: m ::_'".: - -~ : : -. : :.: . *:: Lr. :" . : : lz.lt: \ Lit 

nut lzl :::: : ::' :::... :-i ::; : .:. - -_r: ::-. :l::\ Lu::~:-":^t 
et: : 

I? graZ /or C 00)i Behavior. — If upon the examination it appears 

;:: .:. :- ::= :::t: :: :r.-i : l:::= : tri : : - - - . .7 - _7 
:- ziy:: ziv :r:;:::t ±t ot:s:c *: r'nir^r: :: pvt :»:zi -~-± 
; - ■ ■ : i::::--: . - - . . ■ : 

miy:- ::r.i::::r.r: v.i. : t ;^ :. : : ::.l.t. Lr. :: iht :::■■ .:.::: 
::' :. r l~ hill ::- ihir^t LrLir_«: h~ hi: 'letr. rr.e: :r ih=- 
1 and upon failure to give sach bond, he shall be cxmnnitted 

" 
_ : . ; : . . : : ; - : "it ■.- : : lh : . : ^r i ': 

iht : :: £:r zht : : . : : : : iv :<:' :t= ;-:.:.:::• Sr.t .: :~ : l; 
iz ii: :.: .--'. :: i£:t: ::-r. :::::' := i : ::r iht £r=: :5tr..-t Lr.: 
shih" i£:tr every :;•:;:::: ::nv:- :r. rei-irt iht Lirtzi-iT.. :: 
t?:t:-_-.:t :«:r.i :h i::::vt: ; t:.-t; in :ht L'tzihry ::' r.:: .r~ 
:: . \ - t .-..■•„-; . - --: ■ ■ ■ £ r : - ^ :; :~- ::r.ii- 

:::r.r: ihi: :.-.:. :t:tr.iir.: "~h! r.:. :.i:- Lr.y ::" lit :r:v> 
ii:c-= ::' : /.t i:: ::: :ht :rrrr. :■: ::: yti: !: ::t :c:i r'L" ::-: 

; 
:r ::.: L" he := iirhhir^t: :y : - -.:.--. ::y ::-: ihi: hi fh.ih" z:: 
t ::-r.£r.r: : : _ : Ii'rtr :-trl:-: :hir. r.: :..::.::.: L ' T.Tr-r : : 
; :: .r . ::.: irt very =-evtrt ::. : "t:r :;r.r::r_:::'i.:r ~i; ':«t '-'--•- 
:::r.ri i- :r.-.t: ::.: -_-.: •.:•:!! ;;:::r::::::: ; 7.- £r ; : i::"i :: :»t 
.: :i.: :::\v\\ -.:-... v. i. -t;:j— :: :r: :it: ::: ~.: r. : : .:::::: 
::: lt. ir.it£-::t :t-.m -vr.::r. :• :t~L:r.'.y :~t' :::..r..:::t-: 
7 .-.t =>t::r.i := : : v. :..:.-:.: : i :-. :i. :t i: :r: iir= ihi: : ::\7r\t:~T-: 
='r_L_l :::: :::: i :::::■: -i-r^tr -_ ir. : ::■: : ;:.:"f 



II ;- it. 1 -: 

1; « 



enforcement oe act. 143 

§ 113. Notice to Commissioner to Attend Trial. 

In any prosecution 'before a mayor or police justice, the com- 
missioner of prohibition shall be notified by such mayor or jus- 
tice, in time to attend the trial, and the commissioner, his deputies 
and inspectors, shall have the same power in respect to such 
cases t^iat he has in cases ibefore the circuit court. 191 This is an 
innovation in the criminal procedure of the state. The section 
reads "shall |be notified." Does this mean that such notice is 
essential to a valid conviction and that a conviction without it is 
void? It would seem not, for the purpose of such notice is not 
for the benefit of the accused but to enable the commissioner to 
be present and aid in the enforcement of the act. It is, however, 
by imperative command of the act, the duty of the mayor or 
police justice to give such notice and a failure to do so would 
probably amount to misfeasance in office. The mayors and po- 
lice justices should not overlook this provision. The act does not 
define the manner in which notice shall be given but merely states 
that it shall be in time Ifor the commissioner to attend. While 
the notice need not arise to the dignity of a formal state docu- 
ment, it should at least be in writing and delivered to the com- 
missioner. It would seem to be sufficient if in the form of a 
letter and mailed, which would be equivalent to delivery. In 
order to enable the commissioner to attend, the trial would have 
to be continued and the time set. The accused would undoubt- 
edly have the right to ,di scnar g e o ,n giving bail conditioned to 
appear at the trial. 

§ 114. Limitation oe Actions. 

It is sufficient for the conviction of a person accused of a 
violation of such act to prove a sale or gift contrary to law 
within one year prior to the 'finding of such indictment. 20 

§ 115. Jurisdiction and Venue. 

The act provides that the circuit, corporation and hustings 
courts having jurisdiction for the trial of criminal cases shall 



19. § 25. 20. § 60. 



144 THE VIRGINIA PROHIBITION ACT. 

have exclusive original jurisdiction for the trial of all cases aris- 
ing under the act; except that mayors, police justices and others 
having jurisdiction for the trial of cases for the violation of the 
ordinances of cities and towns shall have jurisdiction to try cases 
arising under ordinances passed by their respective cities and 
towns as hereinafter provided, with the right of appeal to the 
defendant to the court having jurisdiction to try such appeal; 21 
and, it should be added, except that courts of equity shall have 
jurisdiction of injunctions to abate and enjoin nuisances under 
the act. 22 

The provision of the Code that one committing a crime without 
the limits of the state may be prosecuted in any county or cor- 
poration where he may be found or to which he may be sent by 
any judge, justice or court, 23 may probably be invoked in prose- 
cutions under the act. 

Mayor and Police Justice. — The provision of the act above set 
out excepts from the jurisdiction conferred upon the courts juris- 
diction of mayors, police justices and other officers having au- 
thority to enforce city ordinances. Another section of the act 
expressly provides that, "nothing in this act shall be construed 
as conflicting with the jurisdiction of any mayor or police jus- 
tice in the enforcement of city ordinances, prohibiting the manu- 
facture, sale or distribution of ardent spirits." 24 The latter sec- 
tion does not mention other officers than the mayor and police 
justice nor does it provide for the right of appeal by the defend- 
ant to the circuit or corporation court having jurisdiction; but, 
as it is intended merely as a recognition of the powers of the 
mayor and police justice and not to confer such powers, they 
already existing, the section is not to be construed as impliedly 
depriving such officer of power. A similar provision is applica- 
ble as to the defendant's right to appeal. 

It is further provided that, "For the enforcement of such ordi- 
nances, the mayor or police justice shall have jurisdiction over 



21. § 24. See 3 Va. Code, p. 782. 

22. § 36. 23. Va. Code, § 3890. 
24. § 25. 



ENFORCEMENT OF ACT. 145 

the territory contiguous to the city within three miles of the city 
limits, provided said three-mile limit does not interfere with the 
jurisdiction of the mayor or police justice of any other city or 
town, and where there is less than six miles between any city or 
town and another city or town, the jurisdiction of the mayor or 
police justice-of either city or town shall extend to one-half the 
distance between said cities and towns." 25 This is similar to the 
provision of the Code that an offense committed upon the bound- 
ary of two counties or within one hundred yards thereof, may 
be prosecuted in either county. 26 

Jurisdiction of Injunction Proceeding. — The courts of equity 
shall have jurisdiction of a suit in the name of the state to abate 
and perpetually enjoin a nuisance as defined by the act, and 
such courts have power to summarily punish any person violat- 
ing the injunction for contempt of court without the empannelling 
of a jury, by a fine of not less than one hundred dollars nor 
more than five hundred dollars and confinement in jail not less 
than one nor more than six months. 27 

Trial without Jury. — Nothing in the act shall interfere with 
the jurisdiction of courts, as it at present exists, for the trial of 
criminal cases without a jury. 28 

Venue at Place of Offense. — The jurisdiction of the court is 
not determined by the residence of the accused but by the place 
of the offense. 2g 

Venue at Place of Sale. — In case of a sale in which a shipment 
or delivery of ardent spirits is made by a common or other car- 
rier, the sale thereof shall be deemed to be made in the county 
or city wherein the delivery thereof is made by such carrier to 
the consignee, his agent or employee. A prosecution for such 
sale may likewise be had in the county or city, wherein the seller 
resides or from which the shipment is made. 30 This provision 



25. § 25. 26. Va. Code, § 3981. 

27. § 36. 28. § 26. 

29. Com. v. Hersey (Mass.), 9 N. E. 837. 

30. § 6. 

—10 



146 THE VIRGINIA PROHIBITION ACT. 

is constitutional. 31 The state can under its police power provide 
that the place of sale of intoxicating liquors shall be the place of 
delivery by the carrier, if such legislation does not interfere with 
interstate commerce, or the constitution of the state. 32 

Change of Venue — Jury from Another County. — Whenever it 
shall appear to any court before whom a case is to be tried for 
the violation of the provisions of the act, that the local condi- 
tions, family connections of the accused or public feeling hostile 
to the provisions of the act, or that for any other reason the case 
cannot be fairly or impartially tried at the place or by a jury of 
the city or county, the court may in its discretion, upon motion 
of the attorney for the commonwealth, the complainant or his 
attorney, or of the commissioner or his attorney, when he is in 
the case, or the attorney for the accused, change the venue to 
some other county or city where it shall be tried ; or the court 
may, in its discretion, order a jury to be summoned from an- 
other county or city, and no person who is a relative or indebted 
to the accused, shall act as juror in any such case, and in the 
case of a change of venue as provided in the act, the witnesses of 
the defendant shall be paid as if they were summoned for the 
commonwealth. 33 It would seem that a motion from a jury from 
another county or corporation must be made as a prerequisite to 
moving for a change of venue. 34 

§ 116. Indictment. 

Statutory Form. — While any good and sufficient indictment 
may be used, an indictment for any first offense under sections 
three, four and five, of the act, shall be sufficient if substantially 
in the form or to the effect following: 



31. See Keller v. State (Tex. Crim. App.), 1 L. R. A. (N. S.), 458. 

32. Under the constitution of West Virginia, the legislature has the 
power to declare the place of delivery of intoxicating liquors to be 
the place of sale and to prohibit such sales. State v. Adams Exp. 
Co., 219 Fed. 794, 135 C. C. A. 464, 20 V. L. R. 815. 

33. § 63. See also, Va. Code, §§ 4036, 4024. 

34. Waller v. Com., 84 Va. 492. 



ENFORCEMENT OF ACT. 147 

"State of Virginia 

County of to-wit : 

In the circuit court of county : 

The grand jurors in and for the body of said county of 

and now attending said court at its 

term, nineteen , upon their oaths, do present 

that within one year next prior to the finding 

of this indictment, in the said county of did 

unlawfully manufacture, sell, otter, keep, store and expose for 
sale, give away, dispense, solicit, advertise and receive orders for 
ardent spirits, against the peace and dignity of the Common- 
wealth of Virginia." 35 

Indictment of Druggist. — While any good and sufficient in- 
dictment may be used, an indictment against any druggist, owner 
of a drug store, registered pharmacist, clerk or employee, for 
any offense committed under the provisions of the act relating to 
druggists, shall be sufficient if substantially in the form and to the 
effect following : 

''Commonwealth of Virginia, 

County of to-wit : 

In the circuit court of said county : 

The grand jurors in and for the body of said county of 

and now attending said court at its 

term, 19. . ., upon their oaths do present that 

within one year next prior to the finding of this indictment in 

the said county of did unlawfully sell, give 

away, offer, dispense, expose, keep and store for sale and gift 



35. § 7. See § 28. Form under West Virginia Code: "State of 

West Virginia. Count}' of . In the Circuit Court of 

County. The grand jurors in and for the bod)- of the county of 

upon their oaths present that A. B.. within one year next 

prior to the finding of this indictment, in the said county of , 



did unlawfully manufacturer, sell, offer, keep, store, and expose for 
sale and solicit and receive orders for liquors and absinthe and 
drinks compounded with absinthe, against the peace and dignity of 
the state." This has been held constitutional. State v. Farley, 89 
S. E. 738. 



148 THE VIRGINIA PROHIBITION ACT. 

ardent spirits against the peace and dignity of the Commonwealth 
of Virginia." And if it be a second offense, it shall be so stated 
in the indictment returned, and the prosecuting attorney shall 
introduce before the trial court evidence of such former convic- 
tion, and shall not be permitted to use his discretion in charging 
such second offense, or in introducing evidence or proving the 
same on the trial. Provided, that the failure to charge a former 
conviction shall not invalidate the indictment. If the offense is 
committed in a city, the word city shall be substituted for county, 
the court having jurisdiction substituted for circuit court, and 
the name of the city for the name of the county. 36 

Averment of Jurisdiction. — It is necessary that it be shown in 
the indictment in terms or by proper averments that the court 
has jurisdiction. 37 "If the offense is committed in a city the 
word "city" shall be substituted for county, the proper court hav- 
ing jurisdiction substituted for circuit court, and the name of the 
city for the name of the county." 38 The act provides that it 
shall be sufficient to allege that the accused did unlawfully manu- 
facture, sell, offer, keep, store and expose for sale, give away, 
dispense, solicit, advertise and receive orders for ardent spirits, 
against the peace and dignity of the Commonwealth of Vir- 
ginia. 39 

Designating of Offense. — The provision should be construed to 
conform to the settled rule, that all the material facts constitut- 
ing the offense shall be set forth in the indictment with such cer- 
tainty and particularity as to give the accused reasonable notice 
of what he is required to meet and defend himself against, and 
to enable him, in case he should be subsequently proceeded 
against for the same offense, to plead the former conviction or 
acquittal in bar of the second proceeding. 40 If not so construed 
the provision violates the constitutional guaranty that the accused 



36. § 11. 

37. Anderson v. Com., 100 Va. 860, 42 S. E. 865. 

38. § 7. 39. § 7. 

40. State v. Parkersburg Brewing Co., 53 W. Va. 591, 594, 45 S. E. 
924; Bishop v. Com., 13 Gratt. 785. Va. Const., § 8. 



ENFORCEMENT*" OF ACT. 149 

has a right to demand the cause and nature of the accusation 
against him. 41 An indictment for a statutory offense which sub- 
stantially follows the statute is sufficient. 42 

Designation of Offenses. — In an indictment for selling ardent 
spirits such ias are not generally sold or drunk as a beverage, 
and% defendant is a druggist, he has a right to be informed of all 
the circumstances necessary to prepare his defense. 43 An indict- 
ment for unlawful sales of ardent ! spirits need not negative 
the defense that the sale was made on a prescription. 44 A con- 
viction can not be sustained on an information which attempts to 
charge a violation of the prohibitory law by simply alleging that 
the accused did .give away whisky in violation of law. 45 

On an indictment for soliciting unlawful sa.les it is unneces- 
sary to allege the name of the agent through whom, or the agency 
by which, or the manner in which the solicitation is accomplished, 
and the connection of the defendant with the solicitation or its 
subsequent ratification by him is a matter for proof. It is im- 
material whether or not the allegations in the indictment refer- 
ring to the United States mail and the Southern Express Com- 



41. Va. Const, § 8. 

42. Kirk v. State (Ala. App.), 70 So. 990. Since the offense charged 
is a purely statutory offense (Youmans v. State, 7 Ga. App. 101, 113, 
66 S. E. 383), the court did not err in overruling the demurrer to 
the indictment which alleged a violation of § 434 of the Penal Code 
of 1910, in the terms and language of the Code, and so plainly that 
the nature of the offense charged could be easily understood by the 
jury. Ricks v. State, 16 Ga. 600 (3). See in this connection, Rose 
v. State, 1 Ga. App. 596, 58 S. E. 20; Coshin v. State (Ga. App.), 88 
S. E. 996. In State v. Hurley (W. Va.), 90 S. E. 109, it is said, "For, 
more than once, the last time quite recently, it has been held in 
this state that an indictment in the form prescribed by § 3, c. 32a, 
is constitutional, and sufficient to satisfy the requirements as to time, 
place, and circumstance, and certainly as to the offense charged, and 
to serve as a protection against a second prosecution for the same 
offense. State v. Sixo, 87 S. E. 267; State v. Farley, 89 S. E. 7.38, not 
yet officially reported. 

43. State v. Stovall, 68 So. 741. 

44. State v. Stovall, 68 So. 741. 

45. Findley v. State (Okla.), 145 Pac. 1107. 



150 THE VIRGINIA PROHIBITION ACT. 

pany as agencies by and through which the defendant solicited 
the sale of liquors, were specific. It was unnecessary to add "by 
and through the United States mails and by and through the 
Southern Express Company/' under the ruling that the word 
"personally" would cover solicitation through the mails or 
through an express company. 46 

An indictment charged : "That on the 24th day of September, 
1913, at Wayne county and state of Missouri, one S. A. Bates, 
being then and there a physician and engaged in the practice of 
medicine, did then and there unlawfully make out and issue to 
one Jasper Markham a prescription for intoxicating liquor, and 
for a compound of which intoxicating liquor formed a part, to 
be used otherwise than medical purposes, which said prescrip- 
tion is as follows." The prescription is then set out in full, and 
the indictment ends with the words, "against the peace and dig- 
nity of the state.'' The court held that the indictment was in the 
language of the statute and in the form approved, and therefore 
sufficient. 47 

Designation of Time. — The act provides that the indictment 
shall aver that the unlawful act was committed within one year 
prior to the finding of the indictment. 48 It is provided by the 
Code that no indictment shall be quashed or deemed invalid for 
omitting to state, or stating imperfectly the time at which an 
offense was committed, when time is not the essence of the of- 
fense. 49 Under this provision, the law is that, where no statute 
of limitation bars, you may wholly omit the date of the offense 
from the indictment, unless it be one of the rare offenses where 
time enters into its essence ; but, where there is a limitation, you 
must state the date so it appears the offense is not barred. 50 

Reading these two provisions together, it would seem suf- 



46. Cashin v. State (Ga. App.), 88 S. E. 996, citing Rose v. State, 
4 Ga. App. 588, 595, 62 S. E. 119. 

47. State v. Bates, 172 S. W. 79, 186 Mo. App. 365. 

48. § 7. 

49. Code, § 3999; Savage's Case, 84 Va. 619, 5 S. E. 565; Arrington 
v. Com., 87 Va. 96, 12 S. E. 224. 

50. State v. Pennington, 41 W. Va. 599, 23 S. E. 918, 919. 



ENFORCEMENT r 0F ACT. 151 

ficient to allege the time of the act in such manner as to show 
that it occurred within the period of limitation. The provision 
in the Code does not make valid an indictment which fails to 
aver any date, or that the offense was committed at a time 
within the statutory bar, where the offense is one which can not 
be prosecuted after a prescribed limitation. 51 

It % has been held both in Virginia 52 and West Virginia 53 
that a charge designating the time of the commission of the 
offense as within the statutory period is sufficient. The West 
Virginia court said, ''The only time fixed as an essential in- 
gredient of an offense violative of statutes relating to the manu- 
facture and sale of intoxicants or harmful drugs, and generally 
of all misdemeanors, is that the indictment therefor must be 
found within one year after the commission of the offense 
charged. If alleged to be within the year, the accusation is suf- 
ficient, although, if the proof adduced upon the trial of the 
general issue places the violation beyond the limitation period, 
an acquittal must necessarily ensue." 

Designation of Persons. — An indictment or information must 
name the defendant whom it is intended to charge with the of- 
fense therein alleged, and an ommission in this regard will 
make the indictment bad. 54 But the act provides that, in an 
indictment for the violation of any provision of the act, as to a 
sale or gift of ardent spirits, it shall not be necessary to allege 



51. State v. Bruce, 26 W. Va. 153, 157. 

52. An indictment sufficiently notifies the accused of the charge 
brought against him when it charges that the defendant "within six 
months last past, in White Stone Magisterial District, in the county 
of Lancaster, did unlawfully sell and deliver intoxicating liquors and 
mixtures thereof, against the peace and dignity of the commonwealth 
of Virginia." Dix v. Commonwealth, 110 Va. 907, 67 S. E. 344. 

53. It has been held in West Virginia, under a similar provision, that 
an indictment in the form prescribed by statute is not defective or 
invalid, on demurrer or motion to quash, for failure to state the time 
of the commission of the offense other than by the use of the stat- 
utory expression "within one year next prior to the finding of this 
indictment." State v. Farley, 89 S. E. 738. 

54. Com. v. Snider, 2 Leigh 744. 



152 THE VntGKNIA PROHIBITION act. 

a sale or gift of ardent spirits to a particular person. 55 In 
West Virginia it has been held that there is no rule of law or of 
necessity requiring the designation of the purchaser of liquors 
unlawfully sold, 56 and that the state may prove sales to differ- 
ent purchasers, if made within the time charged in the indict- 
ment, with the right of the accused, in such case, to cause the 
state to elect upon which of them it will rely to support a con- 
viction. 57 It is, of course, sufficient to allege the sale or gift to 
:-. r?~: . :: ::;e ; :r:rs .:;•::;::; " s 

Agency in Commission of Offense. — It is not necessary to 
allege the agent through whom nor the agency by which the of- 
fense was committed, the accused's connection therewith nor 
his subsequent ratification thereof. This applies to an indict- 
ment for soliciting sales or orders. 59 In an indictment for fur- 
nishing ardent spirits to a minor through a sale by a clerk, it is 
not necessary to allege the name of the clerk. 60 

Joinder of Counts and Election. — While, as a general rule, 
where a statute makes a number of kindred though separate 
acts unlawful, an indictment may in the same count or different 
counts charge the commission of the several acts; 61 charges 
of felonies and misdemeanors can not be joined, unless it be 
permitted where the misdemeanor is a constituent part of the 
felony. 62 A cogent reason for the rule exists in this state be- 
cause of difference in trial of the two grades of crime. The 
cases in this state are not of much assistance on the question of 
joinder. The course that the courts will follow is probably this : 
where several felonies or felonies and misdemeanors are joined, 
the courts will, upon motion of the accused, in their discretion 



55. ; :••;« 

56. State :. Chisnell, 36 W. Va. 659, 15 S. E. 412. 

57. State : Ousnell, supra; State v. Calhoun, 67 W. Va. 666, 69 S. 
: 1098; State t. Hurley (W. Va.), 90 S. E. 109. 

55. State v. Little, 88 S Z 725 

59. Cashin : State (Ga. App.), Sf 5 E. 996. 

€0. Loeb r. State, 75 Ga. 258. 

EL Ifforganstein r. Conu, 94 Va. 787. 26 S. E. 402. 

62. Hardy : Com., 17 Gratt. 592, 594. 



ENFORCEMENT 'OF ACT. 153 

compel the commonwealth to elect upon which charge to prose- 
cute. 03 In the case of joinder of misdemeanors the common- 
wealth can not he compelled to elect. 64 

Included Offenses. — Under the doctrine of included offenses 
some of the offenses may be included in the charge of others 
when the others are of a higher grade and involve the commis- 
sion of the lower. An indictment for selling may embrace the 
offense of keeping for sale. 

Specification of Particulars. — Where the statements of the 
indictment may reasonably be deemed to be too general and 
imperfect for defensive purposes, the accused may move the 
court to require a more detailed enumeration of the particulars 
of the offense charged. The motion must be made before 
pleading to issue, and be supported by affidavit specially des- 
ignating the information deemed necessary. 65 i 

Indictment for Second Offense. — The act provides that, "if 
it be a second offense, it shall be so stated in the indictment re- 
turned, and the prosecuting attorney shall introduce before the 
trial court, evidence of said former conviction, and shall not be 
permitted to use his discretion in charging said second offense, 
or in introducing evidence and proving the same, on the trial, 
provided that the failure to charge former conviction shall not 
invalidate the indictment." 66 

§ 117. Burden of Proof and Prima Facie Evidence. 

As to Having in Possession. — The burden of proof that ar- 
dent spirits are for personal use is placed upon the person hav- 
ing them in possession. 67 This is a general provision and ap- 
plies to possession in every instance, regardless of the quantity 
of ardent spirits or of the place of possession, whether in the 



63. Mitchell v. Com., 93 Va. 775, 20 S. E. 892. 

64. Mitchell v. Com., 93 Va. 775, 20 S, E. 892. 

€5. State v. Hurley (W. Va.), 90 S. E. 109; State v. Railroad Co. 
68 W. Va. 193, 69 S. E. 703. 

66. § 7. 67. § 4. 



154 THE VIRGINIA PROHIBITION ACT. 

home or elsewhere. The presumption is that possession is not 
for personal use. 

Another section of the act provides that the presumption is 
that the ardent spirits are possessed for sale. This latter sec- 
tion reads, "The possession by any person, of any ardent spirits, 
at any place other than his home, except as provided in this act, 
and the possession in his home of more than one gallon of dis- 
tilled liquor, one gallon of wine or three gallons of beer, or 
other malt liquor, at any one time, shall, in any proceeding or 
prosecution under this act, be prima facie evidence that such 
person possesses such distilled liquors, wine and malt liquor for 
the purpose of sale." 6S There is no doubt that this provision 
is constitutional. It has been so held in other states. 69 The 
three features which distinguish this section from the general 
provisions as to burden of proof of personal use are. (1) pos- 
session at a place other than one's home i possession in 
one's home of more than one gallon of distilled liquor, one 
gallon of wine or three gallons of beer or other malt liquor, and 
(3 ) the presumption is narrowed to that of sale. 

By prima facie evidence is meant evidence which is sufficient 
to sustain a conviction unless rebutted by evidence in favor of 
the accused. 70 It is often stated that such evidence must be 
adduced by the accused, but is not accurate, for the accused may 
support his innocence by any evidence whether adduced by 
himself or the prosecution. 

Y\ nere the prosecution proves possession of ardent spirits 
within the provision of the act, it has made out a prima facie 
case and may rest. The burden is then upon the defendant to 



€8. § 65. 

69. Southern Exp. Co. v. Whittle (Ala.), 69 So. 652. See Clokton 
V. Com.. 109 Va. 513. 

70. Prima facie evidence of a fact is such evidence as, in judgment 
of law, is sufficient to establish the fact: and, if not rebutted, re- 
mains sufficient for the purpose. State v. Dodds. 54 W. Va. 289. 300, 
46 S. E. 228. Where there is a prima facie presumption of law 
that a certain fact or condition exists, the burden of proof to repel 
that presumption rests on him who alleges the contrary. Harmon v. 
Lynchburg, 33 Gratt. 37; Gold v. Marshall, 76 Va. 668. 



ENFORCEMENT OF ACT. 15. 



go forward with his evidence and if he fails a judgment of con- 
viction may be rendered against him. The position of the ac- 
cused may be likened to that in a prosecution for seduction, 
where the chastity of the female seduced is presumed by law, 
and the burden is on the accused to impeach it. 71 

What is sufficient evidence to rebut the presumption or carry 
the burden of proof? This can not be answered in anticipation 
of every case which may arise nor can any absolutely accurate 
general rule be laid down. It has been said that, ''The party 
upon whom the burden of proof rests is bound to prove every 
single circumstance which is essential to the conclusion, in the 
same manner and to the same extent as if the whole issue had 
rested upon the proof of each individual and essential circum- 
stance." 72 In the present instance there is but one circum- 
stance, possession of ardent spirits, but that is essential. As 
in the case of insanity as a defense to crime, it would seem that 
the prima facie case of the prosecution must be overcome by 
proof to the satisfaction of the jury. 73 It is not necessary to 
satisfy the jury beyond a reasonable doubt, 74 but proof suffi- 
cient to cause a mere rational doubt is not sufficient. 75 The ac- 
cused is put in the difficult position of proving a negative fact, 
and, for that reason, his own testimony and evidence of his 
good reputation have particular relevance, and, when estab- 
lished without contradiction, will overcome the prima facie case 
against him. 

The act also provides that whenever ardent spirits shall be 
seized in any room, building, boat, car or other place, searched 
under the provisions of the act, the rinding of such ardent spirits 
in any such place, shall be prima facie evidence of the unlawful 
selling, keeping and storing for sale, .gift, or use, by the person 



71. Barker v. Com., 90 Va. 820, 20 S. E. 776. 

72. Starkie on Evidence, page 856 (9 Am. Ed.), quoted in Porter- 
field's Case, 91 Va. 801, 804, 22 S. E. 352. 

73. Longley v. Com., 99 Va. 807, 37 S. E. 339. 

74. See Dejarnette v. Com., 75 Va. 867. 

75. Boswell v. Com., 20 Gratt. 860; Baccigalupo v. Com., 33 Gratt. 
807, 36 Am. Rep. 795. 



156 THE VIRGINIA PROHIBITION ACT. 

or persons occupying such premises. 76 The remarks above are 
applicable here. This section does not restrict the presumption 
to unlawful selling but extends it to "keeping and storing for 
sale, gift, or use.'' It should be noticed that the presumption 
is not of lawful but of unlawful gift or use. It also provides 
that the burden shall be upon "the person or persons occupy- 
ing the rooms, etc., and not the person in possession of such 
ardent spirits. 

As to Purchasing. — The burden of proof is upon the person 
purchasing ardent spirits to show that the purchase is for 
personal use. 77 

As to Selling. — As the act of selling is made unlawful, its 
proof does not make out a mere prima facie case but is con- 
clusive against the accused. 78 As to presumption where sale is 
made by druggist, see below in this section. 

As to Ownership . — Ardent spirits in one's possession are pre- 
sumed to be owned by him. 79 

As to Procuring for Another. — Proof that the accused re- 
ceived money from another person, accompanied by a request 
to procure whisky for the latter, and thereafter went off, and 
in a short time returned and delivered a bottle of whisky to that 
person, would cast on the accused the onus of showing where, 
how, and from whom he got the whisky. This burden would 
be successfully carried by the accused if, in corroboration of his 
own statement, he proved by an unimpeached witness that he 
had in fact bought the whiskey from another person and paid him 
for it. 80 

As to Grinding Malt. — The burden of proof shall be upon 
any person grinding malt to show that such malt is not to be 
used in violation of the act, except the manufacturer of pure 



76. § 28. 77. § 4. 

78. As to Byrd Act, see 3* Va. Code, p. 780. 

79. Rash v. State, 69 So. 239. 

80. Lane v. City of Millen (Ga. App.), 88 S. E. 748. 



ENFORCEMENT OF ACT. 157 

grain or ethyl alcohol licensed to manufacture such alcohol 
under the act. 81 

As to Possession of United States License. — The act provides 
that whenever ardent spirits shall be seized in any room, build- 
ing, boat, car or other place searched under the provisions of 
the act, the finding of a United States liquor dealer's tax receipt 
in any such place, shall be prima facie evidence of the unlawful 
selling, keeping and storing for sale, gift, or use, by the person 
or persons occupying such premises, or by any person named in 
any United States internal revenue tax receipt posted in any 
room or found anywhere on such premises, or elsewhere. 82 
It also provides that, "The payment of the United States in- 
ternal revenue tax, required of liquor dealers by the govern- 
ment of the United States, by any person or persons other than 
druggists, or hotels licensed under this act within this State, 
shall be prima facie evidence that such person or persons are 
engaged in keeping, selling, or offering and exposing for sale, 
ardent spirits contrary to the laws of this State, and a certificate 
from the collector of internal revenue, his agents, clerks or 
deputies, showing the payment of such tax, the name or names 
of the person or persons to whom issued, shall be evidence of 
the payment of such tax in the examination or trial of any per- 
son or persons selling, keeping, offering and exposing for sale, 
ardent spirits, contrary to the provisions of this act." 83 

As to Certificate of Chemist. — The burden of proof shall be 
upon the prosecution to establish the fact that the mixture 
analyzed is the same as that alleged to have been illicitly sold, 
where the certificate of a chemist of the department of agricul- 
ture shall be introduced in evidence. 84 



81. § 70. 

82. § 28. The Act of March 15, 1906, provides that the possession 
of a United States internal revenue tax receipt for the sale of ar- 
dent spirits in this state shall be prima facie evidence of the sale 
of such spirits, and a United States internal tax receipt for the sale 
of malt liquors shall be prima facie evidence of the sale of such malt 
liquor. 3 Va. Code, p. 684. This provision was held constitutional in 
Clopton's Case, 109 Va. 813. 

83. § 30. 84. § 30 ^ 



158 THE VIRGINIA PROHIBITION ACT. 

In Prosecution I rf. — In any prosecution against 

a druggist owner of a drug ?::rr registered pharmacist, clerk or 
employee, for selling or giving ardent spirits contrary to law, 
if such sale :: gift be proven, it shall be presumed to be unlaw- 
ful in the absence of satisfactory proof to the contrary, but the 
presentation of such prescription or affidavit by the defendant on 
trial shall be sufficient to rebut the presumption arising from 
the proof of s nch sale or gift; provided the jury shall believe 
from all the evidence in the case that such sale or gift was made 
in good faith under the belief that such prescription or affidavit 
and the statements therein were true; and provided, further, 
that such druggist, owner of a drug store, registered pharmacist, 
clerk or employee shall have complied with all other provi 
of the act relating be such sale or gift. 85 

§ 118. Evidence — § US 1). Procuring Evtde:~ 

By searches and sei tion may obtain evidence 

of violation of the act. S6 and various sections of the act pro- 
vide for the : records in order to procure evidence 
of its violations. ST Evidence may also be procured by analyza- 
tion of mixtures containing ardent spirits by the Commissioner 
of Agriculture M 7 .e act aids procuring evidence of its A~io- 
lation by providing that de:e harged - enforce- 
ment are exempt from punishment for purchasing ardent 
spin:- : 

§ ll v 2 . Admissibility :? Evide: 

The treatment of admissibility- of evidence must necessarily 
be limited. An a:: - made to set forth all provisions of the 

act and recent ases from other states arising under similar 
statutes. 



BS 

86. §§ 22, 2 

87. §§ 3* 4 47, 48 

88. - ; . Se€ ante Powers and Duties of Officers to Enforce,* 

§ 103. 

89. \ n 



ENFORCEMENT QE ACT. 159 

Relevant to Charge in Indictment. — Where the indictment, 
•besides charging the offense of selling prohibited liquors, 
charges, in different counts, and in the alternative in each of 
such counts, the offense of keeping prohibited liquors for sale, 
evidence of several different sales at different times is admis- 
sible as tending to show that such liquors were kept for sale in 
yiolatjon of the statute. 910 

Corroborative Evidence. — A person who furnished money to 
the purchaser of whiskey from the accused may testify in cor- 
roboration of the testimony of the purchaser. 91 

Books and Records. — The books required to be kept by car- 
riers, or copies of them, attested by an officer of the company 
or verified by affidavit, are admissible in evidence in any court. 92 

Certificate of Chemist. — The certificate of any chemist regu- 
larly employed in the department of agriculture of the state, 
w T hen signed and sworn to by him, shall be evidence in all prose- 
cutions for violations of the act or of any other laws relating 
to ardent spirits and in all controversies touching the mixture 
analyzed by him; but the burden shall be upon the prosecution 
to establish the fact that the mixture analyzed is the same as 
that alleged to have been illicitly sold; but, upon the motion of 
the accused, the chemist making the analysis shall be required 
to appear as a witness and shall be subject to cross-examina- 
tion. 93 

United States Tax Receipt. — Evidence that the accused had 
in his possession a United States liquor license is admissible on 



90. Spigener v. State, 11 Ala. App. 297, 66 South. 896; Kirk v. State 
(Ala. App.), 70 So. 990. Where one count of an indictment charges 
the defendant with selling intoxicating liquors to a person named, 
and another count charges him with keeping them on hand at his 
place of business, evidence tending to establish his guilt under one 
count may be considered by the jury, though entirely irrelevant to 
the other count. Reddick v. State, 83 S. E. 675, 15 Ga. App. 437. 

91. Kimbrough v. State, 68 So. 673. 

92. § 38. See ante, "Records, Affidavits and Stamps," X. 

93. § 30^. See 3 Va. Code, p. 780. 



160 HEffi VIRGINIA PROTTTRITI : '. ' AC1 

the issue of unlawful selling.* 4 The possession of a United 
States internal revenue tax receipt for the sale of ardent s: 
in this state shall be prima facie evidence of the sale of such 
spirits, and a United States internal tax recer : : : r t:;t \ ~ : 
malt liquors shall be prima facie evidence of the sale of such 
malt liquors. 95 A copy of the record in tifae office of tfhe col- 
lector of internal revenue ma}- be received as c ^U e um wi&ont 
calling the collector to testify. 96 

Declarations and Admissions. — The declarations and admis- 
sions of the defendant tending to show concealment inconsistent 
with keeping for personal use are admissible.* 7 

Of Ownership and C: in — Evidence tl : :_ 

owned or controlled a trunk containing ardent spir imis- 

sible on the issue of unlawful possession.** 

Of Procuring Ardent Spirits from Accused. — The testimony 
of the witness that he gave another monej 7 and sent him 
some whiskey, and that such person went in the direction of 
the defendant's place, and soon returned with the 
in connection with the evidence tending to show prev. 
admissible." 

Of Concealment of — e testimarry she 

tli at prohibited liquors were found or 

the quantities found, and tesl -.ending to show conceal- 

ment in a way in cor- :th kw j pmg for personal use was 

also properly admitted. 1 

Of Sales. — Where the indictment charges in different counts 
and in the alternative in each count the offense of Soeepir g 



94. State : Starchich, 170 S. W. 361. 1S4 Mo. Apr 
Parkel, 170 S. W. 915, 1S5 Mo. Apr " 

95. 3 Va. Code, p. 6>- 

96. Rudue r. Com., Mi '": •" 

97. Kirk 7'. State (Ala. App. " 5c ;>90. 

98. Merrrweather r. State, 70 So. 995. 

99. Kirn taftc S So. 990. 

1. Kirk 7'. State, 70 So. 990. citing Harwell r ; - - XX Ala. Ajxp. 
265, 6S South. 500. 



ENFORCEMENT OF ACT. 161 

dent spirits for sale, evidence of several different sales is ad- 
missible to show keeping for sale in violation of the act. 2 The 
fact that intoxicating liquor is kept for the purpose of unlawful 
barter or sale may be evidenced otherwise than by proof that a 
sale was actually made. 3 

" Of* Possession. — A witness may testify that he had seen ar- 
dent spirits in the possession of the accused. 4 Evidence that 
upon arrest the accused had an unopened bottle of liquor in his 
possession is evidence admissible on the issue of a prior sale. 5 

Of Reputation of Place Where Pound. — Evidence of the gen- 
eral reputation of the place where ardent spirits are found is 
admissible on the question of intent to sell. 6 

Of Drinking and Intoxication. — Under an indictment for the 
illegal sale of ardent spirits, evidence that the persons to whom 
the accused is charged with selling was seen drinking and in- 
toxicated at the house of the accused is admissible. 7 

Receipt of Ardent Spirits by Accused. — Testimony of a wit- 
ness that he delivered ardent spirits to the accused is admissi- 
ble. 8 It may be shown that the accused had received large 
quantities of ardent spirits from a carrier. 9 ' The receipt of in- 
toxicating liquor in such unusual quantities as to render it im- 



2. Kirk v. State, 70 So. 990; Porter v. Athens (Ga. App.). 89 S. 
E. 173; Shepherd v. Jackson (Ga. App.), 89 S. E. 161. 

3. Porter v. Athens (Ga. App.), 89 S. E. 173, citing Johnson v. 
Waycross, 9 Ga. App. 205. 70 S. E. 965; Butler v. Washington, 11 
Ga. App. 130, 74 S. E. 858; Brown v. Atlanta, 11 Ga. App. 755, 76 S. 
E. 72; Meeks v. Carrollton, 13 Ga. App. 79, 78 S. E. 777. 

4. Moss v. State (Ala. App.), 67 So. 715; Moore v. State (Ala. 
App.), 67 So. 789. 

5. McCuen v. State (Tex. Cr. App.), 170 S. W. 738. 

6. Caffee v. State, 145 P. 499. 

7. State v. Pierce, 92 A. 218. 

8. Hoyes v. State, 88 S. E. 752. 

9. In Dunn v. State (Ala. App.), 89 S. E. 170, evidence that the 
accused received between five hundred and one thousand gallons of 
whiskey within two years from a carrier was admitted. 

—11 



162 THE VIRGINIA PROHIBITION ACT. 

probable that these liquors were intended for legitimate use is 
a circumstance to be considered by the jury, with other facts 
and circumstances in the case, in determining whether there is 
any other reasonable hypothesis than that of the defendant's 
guilt. 10 

Incriminating Evidence. — No person shall be excused from 
testifying as to any offense committed by another under the act 
by reason of his testimony tending to incriminate himself, but 
the testimony given by such person shall in no case be used 
against him, nor shall he be prosecuted for the offense as : 
which he testified. 11 

§ 118 (3) Weight . I vtdence. 

In an indictment for the violation of any provision of the 
act, as to a sale or gift of ardent spirits, it shall not be necessary 
to allege a sale or gift of ardent spirits to a particular person, 
and it shall be sufficient for the conviction of the accused to 
prove a sale or gift contrary to la ear pr::r 

the finding of such indictment. 12 

Books and Records. — The books to be kept by the car 
or a copy of them, are prima facie evidence of the facts th 
stated in any trial or proceeding for the enforcement of the pro- 
::s of the act. 13 

Possession of Ardent Spirits. — The act provides that the pur- 



10. Dunn v. State, No. 7161. 18 pp., 89 S. E. 170: Porter v. 
A the: 17 There are circumstances in proof in the pres- 
ent case which strongly indicate a sale of intoxicating liquor by the 
accused, and the evidence that he used three other persons who 
were witnesses as the medium through which unusually large quan- 
tities of intoxicating liquors were ordered in a compa: mited 
period of time, as well as the apparently stealthy and secretive con- 
duct of the defendant, were all circumstances which might have au- 
thorized the inference of his guilt and the exclusion of any other 
reasonable hypothesis. Porter v. Athens «Ga. App.), 89 S. E. 

11. \1 : fe Moore v. State (Ala. App.), 57 Sc 78S McCuen v 
State (Tex. Cr. App.), 170 S. W. 738. 

12. i -:■'• 13. § 3* 



ENFORCEMENT OF ACT. 163 

chasing or having in possession by any person of ardent spirits 
for personal use, shall in no case be deemed a felony, but the 
burden of proof that such ardent spirits are for personal use 
shall be upon the defendant. 14 The possession by any person, 
of any ardent spirits, at any place other than his home, except 
as provided in the act, and the possession in his home of more 
than one gallon of distilled liquor, one gallon of wine or three 
gallons of beer, or other malt liquor, at any one time, shall, in 
any proceeding or prosecution under the act, be prima facie 
evidence that such person possesses such distilled liquors, wine 
and malt liquor for the purpose of sale. 15 Whenever ardent 
spirits shall be seized in any room, building, etc., searched under 
the provisions of the act, the finding of such ardent spirits in 
any such place shall be prima facie evidence of the unlawful 
selling, keeping and storing for sale, gift or use, by the person 
or persons occupying such premises. 16 

Possession of United States License. — Whenever ardent 
spirits shall be seized in any building, searched under the pro- 
vision of the act, the finding of the United States liquor dealer's 
tax receipt in such place shall be prima facie evidence of the 
unlawful selling, etc., by any person named in the tax receipt 
posted in any room or found anywhere upon the premises or 
elsewhere. 17 The payment of the United States internal rev- 
enue tax by any person other than druggists or hotelkeepers 
shall be prima facie evidence that such person is engaged in sell- 
ing, etc., ardent spirits contrary to the laws of the state. 18 A 
certificate from the collector of internal revenue, his agents, 
clerks or deputies, showing the payment of such tax, the name 
or names of the person or persons to whom issued, shall be 
evidence of the payment of such tax in the examination or trial 
of any person or persons selling, keeping, offering and storing 
for sale, ardent spirits, contrary to the provisions of the act. rj 

Testimony of Accused. — Where the defendant contends that 
he acte,d simply as agent for the purchaser, the onus is upon 



15. § 65. 
17. § 28. 
19. § 30. 



14. 


§ 4. 


16. 


§ 28 


18. 


§ 30 



164 THE VIRGINIA PROHIBITION ACT. 

him to show where, how. and from whom he got the liquor, 
and the jury may wholly disregard his explanation, uncorrobo- 
rated by the testimony of any witness.-" 

Of Selling. — Where one is accused of the illegal sale of liquor, 
evidence that money passed and whiskey was delivered as 
a single transaction is sufficient to support a verdict. In this 
case there was direct evidence of an agreement as to price, and 
of the delivery of a certain quantity of whiskey to the purchaser 
in return for the deposit by the purchaser of the stipulated price 
in a place designated by the accused, from which place the ac- 
cused promptly thereafter removed the money, and also an ad- 
mission by the accused, in his statement to the jury, that he had 
delivered the whiskey in question to the purchaser and collected 
the price thereof : and, though this admission was accompanied 
with the further statement by him that he acted only as the 
agent for the purchaser, his statement as to the agency was un- 
corroborated by the testimony of a single witness.- 1 

Of Keeping for Sale. — The violation of a municipal ordinance 
penalizing the keeping of intoxicants for the purpose of un- 
lawful sale may be shown by proof of a single sale. The sale 
raises such a presumption that the liquor sold was kept for the 
purpose of illegal sale as furnishes conclusive evidence of the 
defendant's guilt under the ordinance, unless rebutted by evi- 
dence which satisfactorily establishes that the liquor was kept 
for some different purpose. 2 - 



20. Angry v. State ( Ga. App.). 88 S. E. 213. citing Slaughter v. 
State, 86 S. E. 741: Touchstone v. State. S6 S. E. 744; King z: City 
of Hazlehurst, 16 Ga. App. 335. 337. 55 S. E. 271: Wolf v. State. 16 
Ga. App. 250. 85 S. E. 86: Mack v. State, 116 Ga. 546, 42 S. E. 776. 

21. Angry v. State ( Ga. App.). 8S S. E. 213, citing Donaldson v. 
State, 3 Ga. App. 451, 60 S. E. 115. See also, Bragg v. State. 84 S. 

82, 15 Ga. App. 623; Simpson v. City of Eastman. >4 S. E. 721. 
Under circumstances showing a continuing purpose to sell, evidence 
of a single sale is sufficient to convict for unlawful keeping for sale. 
Shepherd z: Jackson (Ga. App.). 89 S. E. 161. 

22. Porter z: Athens (Ga. App.), 89 S. E. 173. For cases holding 
evidence sufficient, see Fletcher v. State. 67 So. 631; Lane v. City of 



enforcement of act. 165 

§ 119. Variance. 

The act provides that in an indictment for an unlawful sale 
or gift of ardent spirits, it shall not be necessary to allege a 
sale or gift to a particular person, and it shall be sufficient to 
prove a sate or gift contrary to law within one year prior to the 
finding of the indictment. 23 Under an indictment for unlawful 
selling at a particular time evidence of sales at other times is 
admissible. 24 But where the indictment charges one of two 
separate offenses, a conviction can not be had upon proof of 
the other. 25 



Tuscaloosa, 67 So. 779; Hall v. State, 67 So. 714; Merriweather v. 
State, 70 So. 995; Hembree v. City of Atlanta, 15 Ga. App. 388, 83 
S. E. 444; Rice v. City of Eatonton, 15 Ga. App. 505, 83 S. E. 868; 
Griffin v. State, 15 Ga. App. 552, 83 S. E. 871. But in Stephens v, 
City of Crawfordville, 15 Ga. App. 519, 83 S. E. 794; Brown v. City 
of Covington, 15 Ga. App. 421, 83 S. E. 426, evidence was held insuffi- 
cient. The mere fact that the accused acknowledged to searching 
officers that he had ardent spirits in his house and told where they 
were, is not conclusive of his innocent purpose in keeping them. 
Merriweather v. City of Tuscaloosa, 69 So. 258. Evidence of the 
possession by the accused of a large quantity of liquors at a place 
other than his home is sufficient to sustain a conviction of keeping 
liquor in possession for sale. Johns v. State, 69 So. 259. There may 
be cases in which proof of a single sale without more may not nec- 
essarily imply that the seller kept liquors for sale. Everett v. Vidalia, 
14 Ga. App. 664, 82 S. E. 50. However, proof of a single sale, if 
made under such circumstances as to show either a continuing 
purpose on the part of the vendor to sell a stock of liquor, or to 
indicate that the particular liquor sold was kept for that purpose 
(Rooney v. Augusta, 117 Ga. 709, 45 S. E. 72; Reese z/^Newman, 120 
Ga. 198, 47 S. E. 560), will suffice to authorize a conviction under a 
municipal ordinance forbidding the keeping of intoxicants for the 
purpose of unlawful sale. Shepherd v. City of Jackson, 89 S. E. 161. 
As to manufacturing, see White v. State (Ga. App.), 89 S. E. 175; 
Sutton v. State (Ga. App.), 88 S. E. 1005. As to time of commission 
of offense, see Maddox v. City of Dublin (Ga. App.), 89 S. E. 605. 
As to circumstantial evidence, see Gates v. State (Ga. App.), 88 S. E. 
910. 

23. § 60. 

24. Spigener v. State, 66 So. 896, 11 Ala. App. 296; State v. Elliott, 
70 S. E. 473. 

25. State v. Little, 88 S. E. 723. Evidence of a sale of spiritous 



166 the virginia prohibition act. 

§ 120. Witnesses. 

Indorsement on Warrant. — Upon complaint, a justice of the 
peace, etc., shall issue his warrant requiring the persons found 
in any house which has been searched and found to contain 
ardent spirits to be seized and brought before him with such 
witnesses as shall be named in the warrant, or whose names are 
indorsed thereon, to give evidence concerning the complaint. 26 
The omission of the name of a witness in the warrant or fail- 
ure to indorse his name thereon, does not prevent such wit- 
ness from testifying at the trial. 27 

Recognisance. — If upon an examination of any person charged 
with the violation of any of the provisions of the act it shall 
appear that there is probable cause to believe the accused guilty, 
all material witnesses shall be recognized, with or without se- 
curity, as the justice, judge, or mayor may deem proper, to 
appear before the grand jury to give evidence at the next term 
of the court having jurisdiction. 28 

Fees. — Witnesses summoned on behalf of the commonwealth 
shall be entitled to the same fees as are now allowed by law in 
other misdemeanor and felony cases, as the case may be, the 
fees to be paid as in misdemeanor and felony cases other than 
violations of the revenue laws. 29 

Compelling Intemperate to Testify. — Any person of intemp- 
erate habits or addicted to the use of any narcotic drug shall be 
compellable, in any proceeding had under this section, to dis- 
close from whom he has received ardent spirits. For a failure 
or refusal to make such disclosure he shall be guilty of contempt 



liquors does not constitute a variance from a charge of a sale of 
spiritous, vinous, and malt liquors. Rash v. State (Ala. App.), 69 
So. 239. As to other cases bearing on the question of variance, see 
Sanders v. State, 171 S. W. 142; City of Salina v. Snead, 94 Kan. 210, 
146 Pac. 329; Porter v. City of Atlanta (Ga. App.), 88 S. E. 744. 

26. § 22. See Va. Code, § 3984. 

27. Lawrence v. Com., 30 Gratt. 853. 

28. § 23. 
f9. § 55. 



ENFORCEMENT OF ACT. 167 

and shall be fined not less than five nor more than fifty dollars 
and be committed to the jail for a period not exceeding thirty 
days. 30 

Compelling Chemist to Testify. — Where the certificate of a 
chemist employed in the department of agriculture has been in- 
troduced in evidence by the prosecution upon motion of the 
accused, the chemist making the analysis shall be required to 
appear as a witness and shall be subject to cross examina- 
tion. 31 

Self-incrimination. — No person shall be excused from testify- 
ing as to any offense committed by another under the act by 
reason of his testimony tending to incriminate himself, but the 
testimony given by such person shall in no case be used against 
him, nor shall he be prosecuted for the offense as to which he 
testifies. 32 

§ 121. Instructions. 

Instructions in prosecutions under the act are governed by 
the rules applicable to other criminal prosecutions. There is 
nothing in the act changing the existing division of power be- 
tween the court and jury. Questions, of fact are for the jury. 33 

§ 122. Trial by Jury. 

Trial without Jury. — It is provided that nothing in the act 
shall interfere with the jurisdiction of courts, as it at present 
exists, for the trial of criminal cases without a jury. 34 Under 
the Virginia constitution the accused has a right to a jury trial, 
which he may waive. 35 This right is not violated by a trial by 



30. § 41. 31. § 3oy 2 . 

32. § 73. 

33. See Merriwether v. City of Tuscaloosa, 69 So. 258; Hayes v. 
State, 88 S. E. 752. 

34. § 26. See Va. Code, §§ 4023, 4048. 

35. Va. Const., § 10. See Miller v. Com., 88 Va. 618, 14 S. E. 161; 
Brown v. Epp.s, 91 Va. 726, 21 S. E..119; Ragsdale v. Danville, 116 Va. 
484. See also, 1 Va. Law Reg. N. S. 643. 



168 THE VIRGINIA PROHIBITION ACT. 

a justice of the peace without a jury but with right to appeal 
to a circuit or corporation court. 36 

Any person violating any of the provisions of an injunction 
enjoining and restraining the owners,, etc.. of any building de- 
clared a nuisance, shall be summarily punished for contempt 
of court without the empannelling of a jury. 37 

Qualifications of Jurors. — Xo person who is a relative or in- 
debted to the accused shall act as a juror in any case where the 
jury is ordered from any city or county, or. it seems, where the 
venue has been changed. 3S 

Jury Summoned from Another County. — Whenever it shall 
appear to any court before whom a case is to be tried for the 
violation of the provisions of the act, that the local conditions, 
family connections of the accused, or public feeling hostile to 
the provisions of the act, or that for any other reason the case 
can not be fairly or impartially tried at the place or by a jury 
of the city or county, the court may in its discretion, upon mo- 
tion of the attorney for the commonwealth, the complainant or 
his attorney, or of the commissioner or his attorney, when he is 
in the case, or the attorney for the accused, order a jury to be 
summoned from another county or city, and no person who is 
a relative or indebted to the accused, shall act as juror in any 
such case. 39 

§ 123. Dismissal. 

The act provides that no prosecution shall be dismissed over 
the objection of the attorney employed by a citizen to assist the 
prosecuting attorney or over the objection of the commissioner 
of prohibition or of the attorney representing his office, or of 
the attorney-general or his assistant whenever any of said of- 
ficials are associated in such prosecution, until the reasons in 
writing of the attorney for the commonwealth for the dismissal. 



36. See Code. §§ 4106. 4107. 4108; Brown v. Epps. 91 Va. 726. 
S. E. 119. 

37. § 36. 38. § 63. 

39. § 63. Va. Code. § 4024 and annotation. 



ENFORCEMENT 'oE ACT. 169 

with the objections thereto by the associate counsel in writing, 
shall have been filled with, argued and fully considered by the 
court. 40 Independent of the provision it is necessary for the 
prosecuting attorney to ask and obtain leave of court to enter 
a nolle prosequi to an indictment. 41 It is evidently not the in- 
tention of the act to impliedly change this rule in the case where 
there is no objection made to the action of the prosecuting at- 
torney. Application to and leave of court is therefore neces- 
sary in both instances, with the distinction that where the ob- 
jection is made the prosecuting attorney must file his reasons 
in writing. 

§ 124. Costs. 

For official services rendered in connection with violations of 
the act all officers, including clerks of courts having jurisdiction 
to try such cases, and witnesses summoned on behalf of the 
commonwealth shall be entitled to and shall be jpaid the same 
fees as are now allowed by law in other misdemeanor and fel- 
ony cases, as the case may be, such fees to be paid as now pre- 
scribed by law in misdemeanor and felony cases other than vio- 
lations o'f the revenue laws. 42 

Under the provision of the act making it unlawful to bring 
ardent spirits into the state in any wagon, automobile, etc., it 
is provided, that unless bond be given, the wagon, automobile, 
etc., shall be seized and sold for the payment of the fine and 
costs. 43 

In Injunction Proceedings. — Whenever the court shall con- 
tinue for one year or make perpetual the injunction enjoining 
and restraining the use of a house declared a nuisance, it shall 
allow the attorney for the complainant or for the commissioner, 
or the attorney for the commonwealth, when he conducts the 
case without assistance, a reasonable fee, which shall be taxed 
and collected as other costs. 44 



40. § 44. 

41. Randall v. Com., 24 Gratt. 644. 

42. § 55. 43. § 57. 
44. § 36. 



170 THE VIRGINIA PROHIBITION ACT. 

Costs of Analyzing. — For analyzing ardent spirits the depart- 
ment of agriculture shall be paid the actual cost thereof, includ- 
ing the time of the chemist and the chemicals required in mak- 
ing the analysis, and such costs are to be paid by the commis- 
sioner of prohibition out of the funds appropriated by the act, 
upon an itemized statement of the commissioner of agriculture 
rendered at the end of each month. 45 

§ 125. Appeal. 

The act provides that mayors, police justices and others hav- 
ing jurisdiction of the trial of cases for violation of ordinances 
of cities and towns shall have jurisdiction to try cases arising 
under ordinances passed to further prohibit the use, etc., of 
intoxicating spirits, with the right of appeal to the defendant 
to the court having jurisdiction to try such appeal. 46 

In all cases arising under the act the state shall have the right 
of appeal, except when such appeal is forbidden by the consti- 
tution. 47 

§ 126. Punishment. 

"Any person who shall violate any of the provisions of section 
three, of this act, or any person, except a common carrier, who 
shall act as the agent or employee of such manufacturer or such 
seller, or person in so keeping, storing, offering or exposing for 
sale such ardent spirits, or act as the agent or employee of the 
purchaser in purchasing such ardent spirits, except as herein 
provided, shall be deemed guilty of a misdemeanor for the first 
offense, and of a felony for a second or any subsequent offense 
committed after the first conviction ; provided that the offense 
of drinking, giving away, or receiving ardent spirits contrary 
to the provisions of this act, shall not be deemed a felony in 
any case; and provided further that the purchasing or having 
in possession by any person of ardent spirits for personal use, 



45. § 30J4. 46. § 24. 

47. § 45. See Va. Const., §§ 8, 88; Va. Code, § 4052, 6 Va. Law 
Reg. 244. 



ENFORCEMENT -OE ACT. 171 

shall in no case be deemed a felony, but the burden of proof 
that said ardent spirits are for personal use shall be upon the 
defendants." 48 "Any person who shall violate any provision 
of the act, shall, except as otherwise herein provided, be deemed 
guilty of a misdemeanor, and be fined not less than fifty dollars 
nor more tiian five hundred dollars, and be confined in jail not 
less than one nor more than six months. The penalty for the 
second or any subsequent offense committed after the first con- 
viction, which is not declared a felony in this act, shall be a 
fine of not less than one hundred dollars, nor more than five 
thousand dollars, and imprisonment in jail for not less than six 
months nor more than one year. Whenever, in this act, the 
violation of any provision is declared a felony, the person con- 
victed of such violation shall be punished by confinement in the 
penitentiary for not less than one nor more than five years, or, 
in the discretion of the jury, by confinement in jail not less 
than six nor more than twelve months and by a fine not exceed- 
ing five hundred dollars." 49 "Whenever a person is convicted 
under this act for an offense punishable by confinement in jail, 
he may, for the first offense, be required to work out the term 
of his confinement on the public roads, and for the second of- 
fense he shall be sentenced by the court to work out his term 
of confinement on the public roads, unless the court shall be 
satisfied that his physical condition be such, upon the testimony 
of two reputable physicians after careful personal examination, 
as to make such work permanently injurious to his health, and 
in every such case the judge shall after consultation with the 
State commissioner of highways by letter or otherwise name in 
his order the camp to which the person convicted is to be 
sent." 50 

Making False Affidavit. — A person making a false affidavit 
shall be guilty of a misdemeanor. 51 



48. § 4. As to punishment under Byrd Law, see 3 Va. Code, p 
781. 

49. § 5. 50. § 68. 
51. 5 12. 



172 THE VIRGINIA PROHIBITION ACT. 

Drinking. — The offense of drinking in a public conveyance 
or public place is a misdemeanor. 52 The act provides that the 
offense of unlawful drinking shall not be deemed a felony in 
any case. 53 

Purchasing. — The act provides that the offense of purchasing 
in violation of law shall in no case be deemed a felony. 54 

Giving Away. — The act provides that the offense of giving 
away ardent spirits shall in no case be deemed a felony. 55 The 
giving away of ardent spirits, or any shift, or device whatever, 
to evade the provisions of the act, is unlawful and punishable 
as unlawful selling is punished. 56 

Storing. — See ''Giving Away." 

Evading Law. — The keeping, storing, or giving away of ar- 
dent spirits, or any shift, or device whatever, to evade the ] re- 
visions of the act, shall be deemed unlawful within the provi- 
sions of the act, and shall be punished as unlawful selling is 
prnished. 57 ! 

False Labelling Container. — See ante, "Container and Label 
Thereon," § 55. " ; . 

Conveying or Encumbering Property. — The offense of un- 
lawfully transferring or encumbering property is punishable as 
a misdemeanor for the first offense and as a felony for every 
subsequent offense. 58 

Collecting or Soliciting. — The offense of soliciting sales, trans- 
mitting orders or of collecting for the sale of ardent spirits is 
a misdemeanor. 59 

Bringing into State. — The offense of bringing intoxicating 
liquors into the state in any wagon, automobile, etc., contrary to 
law is a misdemeanor and the defendant shall be fined not less 



52. § 37. 53. § 4. But see, § 17. 

54. § 4. But see, § 17. 55. § 4. But see, § 17. 

56. § 18. 57. § 18. 

58. § 69. 59. § 21. 



ENFORCEMENT r 0F ACT. 173 

than fifty dollars nor more than five hundred dollars, and con- 
fined in jail not less than one nor more than six months. The 
act further provides that such wagon, automobile, etc., shall be 
seized and sold and the proceeds of the sale above the amount 
of the fine and the costs shall be paid to the owner ; provided 
that the accused may give bond for his appearance in court to 
ans\ver to the charge against him, and to pay the fine and cost 
if convicted, in which event the wagon, or automobile, etc.. shall 
be released. 



60 



By Revocation of License — If any keeper of a hotel, boarding 
house, pool room, billiard room, bowling alley, store or other 
place requiring any license, or any employee with his knowledge, 
consent, connivance or acquiescence shall keep, store, dispense 
or use, contrary to the provisions of the act any ardent spirits, 
in addition to the penalties prescribed for the violations of the 
act, the license of such place shall be revoked for one year for 
the first offense, and for the second offense, no such license shall 
be granted at the same place or to the person convicted for a 
period of two years ; provided further that where the place is 
run under a lease by a person or persons other than the true 
owner of the building, nothing herein shall operate to prohibit 
the issuance of a license to a new lessee who was not in any 
way connected as employee or otherwise with the former busi- 
ness therein conducted at the time of the revocation of the li- 



cense 



01 



By Requiring Bond for Good Behavior. — In addition to the 
penalties imposed by the act for the violation of any of its pro- 
visions, the court may, in its discretion, after conviction is had, 
for the first offense, and shall after every subsequent conviction, 
require the defendant to execute bond with approved security, 
in the penalty of not less than five hundred, nor more than five 
thousand dollars, conditioned that such defendant will not violate 
any of the provisions of the act, for the term of one year. And 
if such bond shall not be given, the defendant shall be committed 
to jail until it is given, or until he is discharged by the court, 

60. § 57. 61. § 53. 



174 THE VIRGINIA PROHIBITION ACT. 

provided that he shall not be confined for a longer period than 
six months. 62 

By Sale or Destruction of Property. — Under the different pro- 
visions relating to seizures, property seized may be sold or de- 
stroyed. 63 

Under Ordinance of City. — The cities and towns of the state 
have power to pass ordinances and to provide adequate penalties 
for the enforcement thereof, to further prohibit the manufacture, 
transportation, sale, etc., of ardent spirits. 64 

Second Offense. — The second offense of violating the different 
provisions of the act is generally made a felony. 65 The keeping, 
storing, or giving away of ardent spirits, or any shift, or device 
whatever, to evade the provisions of the act, shall be deemed un- 
lawful within the provisions of the act, and shall be punished as 
unlawful selling is punished. 65a But the offense of drinking, 
giving away, receiving, purchasing or having in possession for 
personal use, shall in no case be deemed a felony. 66 



Z2. § 23. 

63. See ante, "Enforcement by Destruction of Ardent Spirits and 
Container and Sale of Wagon, etc.," § 108. 

64. § 27. 65. §§ 4, 5, 68. 
65a. § 18. 66. § 4. 



XIII. Civil Damage Act. 

§ 127. In General. 

§ 128. Who May Maintain Action. 

§ 129. Against Whom Action May Be Maintained. 

§ 130. When Right of Action Exists. 

§ 131. Jurisdiction and Venue. 

§ 132. Form of Action. 

§ 133. Pleading. 

§ 134. Trial. 

§ 135. Damages. 

§ 127. In General. 

"Every wife, child, parent, guardian, or employer or other 
person who shall be injured in person or property or means of 
support by any intoxicated person in consequence of his intoxi- 
cation, habitual or otherwise, such wife, child, parent, or guard- 
ian, or employer shall have a right of action, in his or her own 
name against any person who shall, by selling, bartering, or giv- 
ing away intoxicating liquors, have caused the intoxicating of such 
person for all damages actually sustained, as well as for exem- 
plary damages; and a married woman shall have the right to 
bring suit, prosecute and control the same, and the amount re- 
covered the same as if unmarried; and all damages recovered by 
a minor under this act shall be paid either to such minor or his 
or her parent, guardian or next friend, as the court shall direct; 
and all suits for damages under this chapter shall be, by civil 
action in any of the courts of this State having jurisdiction 
thereof." 1 

Constitutionality of Provision. — The West Virginia act re- 
lating to civil damages has been held constitutional by the 
highest court of that state. 2 

Importance of Provision. — This provision of the act can not 



1. § 74. 

2. Mayer v. Forbe, 40 W. Va. 252; Duckworth v. Stalnaker, 74 W. 
Va. 247, 81 S. E. 989. 



175 



176 THE VIRGINIA PROHIBITION ACT. 

be of much importance and few cases can arise thereunder for 
the two reasons that the general provisions of the act will pre- 
vent sales and giving of ardent spirits and the consequent injury 
by intoxication, and that if causes of action should arise they 
will be against irresponsible persons against whom an execu- 
tion would generally be useless. 

§ 128. Who May Maintain Action. 

The action may be brought by every wife, child, parent, 
guardian or employer or other person injured in person, prop- 
erty or means of support by any intoxicated person in conse- 
quence of his intoxication. 

Wife. — Who is a wife within the meaning of this provision? 
The "wife" is designated along with other persons all of whom 
are connected with the intoxicated person by a relation. The 
relation is that classed in law as a domestic relation, slightly 
expanded by modern theory of the relation of employer and 
employee. For her to have the right to sue, the intoxicated 
person must be her husband in fact at the time of the injury. 
She need not necessarily be actually residing with him but must 
bear the relation of wife in fact as well as name. Upon an ab- 
solute divorce the relation ceases to exist and of course such 
divorced woman can not maintain the action. Upon a limited 
divorce the right of the wife would depend upon the terms of 
the decree. It is possible that the courts will construe the act 
to mean any wife who has not been divorced, but the construc- 
tion above would seem more reasonable and accord better with 
the object of the act. The theory that the parties must bear the 
relation of husband and wife in fact, leads to the conclusion 
that a woman, who is not actually married to a man but is co- 
habiting with him as his wife, is held out to the world as such, 
and bears that relation to him, may sue. This result can not 
easily be avoided when "wife" is construed in connection with 
the other terms with which it is grouped. 

Child. — Who is a "child ?" In this connection the word does 
not mean infant, but it means the child of a parent. The mere 



CIVIL DAMAGE ACT. 177 

fact that the injured person is under age neither gives nor de- 
feats the right of action. What the act means is the child of 
the parent by whom he is injured. Again, it is necessary to 
establish a relation between the injured and the intoxicated 
persons. There must be a child injured by an intoxicated 
parent. When does the relation of parent and child exist? 
The law on this subject is well settled by numerous decisions, 
all of which need not be discussed here. The parent may be 
either the actual or apparent father, but must bear such rela- 
tion to the child. The legitimacy of the child does not deter- 
mine the relation. The bastard child to whom the intoxicated 
father does not bear the relation of parent can not sue, but may 
if the relation exists. An adopted child may sue as any other 
child, for by statute the same relation exists as does in the 
case of actual parent and child. The child need not be depend- 
ent upon the parent. While the words "means of support" if 
standing alone would bear such construction, the act is not to 
be so construed, but "child" must be construed in connection 
with the words "parent," "guardian" and "in person or prop- 
erty," as well. The parent and guardian need not be dependent 
in order to recover, and the right of an infant stands on an 
equal footing. This construction is strengthened by his right 
to sue for injury to property. A child bearing such family re- 
lation to the intoxicated person may sue regardless of blood 
relation, legitimacy, age or dependence. 

Parent, Guardian and Employer. — The parent, guardian or 
employer can recover when the injury is caused by the intoxi- 
cation of the child, ward or employee bearing such relation to 
the parent, guardian or employer respectively. What has been 
said as to the right of a wife or child to recover is applicable 
here. 3 

Other Person. — Under the rule of ejusdem generis the words 
"other person" are apparently to be construed to mean a person 
of the same class as wife, child, etc. The rule should apply 
here. 



3. See Carpenter v. Hyman, 67 W. Va. 4. 66 S. E. 1078. 
—12 



178 THE VIRGINIA PROHIBITION ACT. 

Relation to Intoxicated Person. — Where the action is grounded 
upon injury to means of support, what has been stated above 
as to the relation between the person suing and intoxicated 
person is applicable : but. where the injury is to the person or 
property, a different rule may apply and a relation between 
such persons need not be established. It has been so held in 



§ 129. Against Whom Action May Be Maintained. 

The act in substance provides that the person selling, barter- 
ing or giving intoxicating liquors to the person causing the in- 
quiry shall be liable. Such person is liable if his act causes or 
contributes to cause the intoxication. A person may be liable 
under the act as a joint tort feasor. 5 A person is responsible 
for actionable injuries caused by sales or gifts of liquor made 
by his agents or servants within the general scope of their em- 
ployment, though the particular sale or gift in question is made 
without his knowledge or consent, or even in disobedience to 
his general or specific orders.' - ' A landlord is responsible for 
the act of his tenant in causing intoxication only where the 
premises are used for sale or gift of liquor with his knowledge 
or consent." 

Person Out of State. — The provision can have no extrater- 
ritorial effect and therefore a person without the state is not 
liable thereunder.'" 

§ 130. When Right oe Action Exists. 

The action lies for injury in person, property or means of 
support by the intoxicated person in consequence of his intox- 
ication caused bv the sale, barter or gift of the defendant. 



4. Dudley :. Parker, 132 X. Y. 336, 30 X. E. 

5. Bowden v. Yoorheis. 135 Mich. 648, 9S X. W. 406. 

6. Duckworth v. Stalnaker. 68 W. Ya. 197, 69 S. E. 850. 

7. Myers V. Kirk, 64 Iowa. 27. 19 X. W. 546. See also. Brown v 
Fidelity, etc.. Co., 70 W. Ya. 613. 74 S. E. 868. 

8. Goodwin v. Young. 34 Hun. i X. Y. >. 252. 



CIVIL DAMAGE ACT. 179 

Injury to Person. — Injury to the person means actual physi- 
cal violence or suffering. 9 

Injury to Property. — The plaintiff may recover for injury to 
property. 

Injury to Means of Support. — An action lies for injury to 
means of -support. What is an injury to means of support is 
difficult of determination. 10 As stated, it is necessary that the 
statutory relation exist between the parties. But, it seems, there 
need be no actual dependence. If a mother has been injured 
in her means of support by the intoxication of her minor son, 
she has a right of action, although at the time of such injury 
she was living with the husband and father on whom she de- 
pended partly for support. 11 The common-law rule of proxi- 
mate cause, does not apply to actions for civil damages. It is 
only necessary that the injury complained of should be in con- 
sequence of the unlawful act ; it need not be the direct, or prox- 
imate, result of it. In an action for damages in such case the 
jury has a right to regard the intoxication of the husband as 
the proximate cause of his physical injury, and the injury to 
the wife's means of support as a natural consequence resulting 
from the unlawful sale of intoxicating liquor. lla 

.Injury by Intoxicated Person. — The act reads injured "by 
any intoxicated person in consequence of his intoxication, ha- 
bitual or otherwise.'" This must be construed to mean that it 
is a necessary ground of action that the injury must have been 
inflicted by the intoxicated person. It is not sufficient if the 
injury is merely to such person; it must be by him. It has been 
held such action for damages will not be for the death of such 



9. Smith v. Wilcox, 47 Vt. 537. 

10. For cases from other states, see 23 Cyc. 312. See also, Duck- 
worth v. Stalnaker, 74 W. Va. 247, 81 S. E. 989; Pennington v. Gil- 
laspie, 66 W. Va. 643, 66 S. E. 1009. 

11. Carpenter v. Hyman, 67 W. Va. 4, 66 S. E. 1078. 

11a. Duckworth v. Stalnaker, 68 W. Va. 197, 69 S. E. 850. 



180 THE VIRGINIA PROHIBITION ACT. 

intoxicated person. 12 But the word "by" should be so liberally 
construed to mean "through." This is not a strained nor unusual 
meaning of the word, and is rendered reasonable, if not neces- 
sary, when construed in connection with the words "means of 
support." If such construction is not proper, the act certainly 
must be construed to give an action for damages where the in- 
toxicated person is the agency of the injury and such injury is 
in consequence of his intoxication. 13 

§ 131. Jurisdiction and Venue. 

Jurisdiction of the action is vested in the courts of the state 
having jurisdiction of civil actions generally. An action for 
civil damages is transitory, 14 and may be brought in the county 
or city where the defendant, or any of them, may reside, 15 or 
where the cause of action, or any part thereof, arose. 16 The 
provision of the act for a change of venue under certain condi- 
tions applies only to criminal prosecutions. There can be no 
doubt as to the correctness of this construction, for the particu- 
lar provision speaks of cases against the "accused" and prose- 
cuted by the attorney for the commonwealth. 17 Such provision 
has no application to the civil action for damages, which must 
be governed by existing law. 

§ 132. Nature and Form of Action. 

It is expressly declared that the action is civil in nature and 
in the name of the person injured. The state is in no sense a 



12. Under the civil damage act, § 26, chap. 32. W. Va. Code 1906, 
as construed by the supreme court, no damages can be given a widow 
against a licensed retailer of spirituous liquors, because of injury to 
her means of support by the death of her husband, caused by intox- 
icants sold her husband by him. Pennington v. Gillaspie, 66 W. Va. 
643, 66 S. E. 1009. 

13. As to relation, see ante, ''Who May Maintain Action," § 128. 

14. Pennington v. Gillaspie, 63 W. Va. 541, 60 S. E. 416. 

15. Va. Code, § 3214. 

16. Va. Code. § 3215. 

17. § 63. 



CIVIL DAMAGE ACT. 181 

party thereto. 18 The action is f©r a tort, which can not be as- 
signed, 19 and which does not survive the death of the plaintiff, 
but does that of the intoxicated person. 20 

§ 133. Pleading. 

The rules of pleading applicable in any other civil action ap- 
ply here. 21 

§ 134. Trial. 

Burden of Proof. — The burden of proof is on the paintiff, 
except that the sale or gift is presumed illegal. 22 

Evidence. — For cases on admissibility 23 and sufficiency 24 
of evidence, see footnote. As in ordinary damage cases, the 
evidence must afford data, facts and circumstances, reasonably 
certain, from which the jury may find compensation for the 
loss suffered by reason of the injury proved. 24a 

Instruction. — See cases cited in note. 25 If the plaintiff be 
entitled to actual damages, the jury may be told in an instruc- 
tion that they may also award exemplary damages ; but it is 
error to tell them that they should award exemplary damages. 253 



18. See Rembardt v. Fritzsche, 69 Hun. (N. Y.) 565, 23 N. Y. S. 
958. 

19. McGee v. McCann, 69 Me. 79. 

20. Roose v. Perkins, 9 Neb. 304, 2 N. W. 715. But see Va. Code, 
§ 2655. 

21. For sufficient declaration, see Duckworth v. Stalnaker, 68 W. 
Va. 197, 69 S. E. 850. 

22. League v. Ehmke, 120 Iowa 464, 94 N. W. 938. 

23. Greer v. Arrington, 72 W. Va. 693, 79 S. E. 720; Rodgers 7.-. 
Bailey, 68 W. Va. 186, 69 S. E. 698; Dickworth v. Stalnaker, 68 W. 
Va. 197. 69 S. E. 850; Pennington v. Gillaspie, 63 W. Va. 541, 60 
S. E. 416. 

24. See 23 Cyc. 324. 

24a. Carpenter v. Hyman, 67 W. Va. 4, 66 S. E. 1078. 

25. Pennington v. Gillaspie, 66 W. Va. 643, 66 S. E. 1009; Duck- 
worth v, Stalnaker, 68 W. Va. 197, 69 S. E. 850; Carpenter v. Hy- 
man. 67 W. Va. 4, 63 S. E. 1078. 

25a. Pennington v. Gillaspie, 66 W. Va. 643, 66 S. E. 1009; Duck- 
worth Stalnaker, 68 W. Va. 197. 69 S. E. 850. 



182 the virginia prohibition act. 

§ 135. Damages. 

Measure and Elements. — The act provides for the recovery 
of damages actually sustained, as well as exemplary damages 
for any injury in person, property or means of support. In 
an action by a wife for damages for injury to her means of 
support, she is not limited to the amount of damages sustained 
between the date of the sales to or physical injuries inflicted 
on her husband and the date of her suit, but may show perma- 
nent injury to him and consequential injury to her means of 
support beyond the time of such action, and under a declara- 
tion charging generally such injury and damages resulting there- 
from. 251 ' 

Damage for Mental Anguish. — The act provides for dam- 
ages for injury "in person or property or means of support," 
which is identical with the Indiana statute under which it was 
held a wife could not recover for anxiety of mind, mortifica- 
tion and sorrow or loss of her husband's society. In Koener v. 
Oberly, 56 Ind. 284, 26 Am. Rep. 34, 35. decided under the 
Ind. Acts, 1873,. p. 151, the court said: "The action will not 
lie under the statute, unless the plaintiff was injured in person 
or property, or means of support, because the statute does not 
give the right of action for any other injury. The only injury 
complained of in this case related to the plaintiff's means of 
support. There was no allegation of any injury to her person 
or property. Under the allegations of the complaint, it is clear 
that the plaintiff could not recover damages for 'anxiety of mind,' 
'mortification and sorrow,' or 'loss of her husband's society,' 
because those things were entirely foreign to the case made by 
the complaint." In West Virginia it has been held that in or- 
der to support an action under the civil damage act, some ac- 
tual damage to the physical person, property or means of sup- 
port, must be proven ; mental anguish is not alone sufficient, but, 
if actual damages be shown, mental anguish may be considered 
by the jury in augmentation of damages. 26 



25b. Duckworth v. Stalnaker, 74 W. Va. 247, 81 S. E. 989. 
26. Duckworth v. Stalnaker, 68 W. Va. 197, 69 S. E. 850. 



CIVIL DAMAGE ACT. 183 

Exemplary Damages. — The act provides that the injured 
party may in addition to actual damages recover exemplary 
damages. The act refers to the common-law definition of the 
term which is. damages inflicted by way of punishment upon a 
wrongdoer. 27 A provision similar to that of the Virginia act 
has been held unconstitutional as violating the constitutional 
provision that no person shall be twice put in jeopardy for the 
same offense, where the sale or gift is made under such circum- 
stance as to constitute a criminal offense. 28 This was formerly 
the holding in West Virginia, 29 but has been overruled. 30 It is 
now held that the offender may be punished by the state and by 
a pecuniary action by an individual. In Mayer v. Frobe, 40 
W. Va. 246, 22 S. E. 58, 60, it is said: "The same overt act 
may be punished twice, once as an offense against municipal 
ordinance, and once as a statutory crime, so long as life and 
liberty are not twice put in jeopardy. The same reasoning is 
of equal force and just as applicable in punishment in a civil 
action for a private injury. In such case the wrongdoer is 
neither tried, convicted, nor punished for a crime against the 
public. Sometimes the law may hold the wrongdoer's act to 
be a crime, and inflict on him a penalty or fine in addition to 
the civil punishment ; but this is for the offense committed by 
him against the public, and not for the private injury inflicted. 
But oftentimes a punishment is imposed in a civil proceeding 
for an act which is not punished or punishable as a crime. It 
is, however, certainly true beyond dispute that the legislature is 
alone clothed with the power to determine in either case in what 
manner and to what extent the malfactor shall be punished, and 
at the same time to authorize both civil and criminal punish- 
ment where life and liberty are not involved." 



27. Mayer v. Frobe, 40 W. Va. 246, 22 S. E. 58. 

28. Koerner v. Oberly, 56 Ind. 284, 26 Am. Rep. 34. 

29. Pegram v. Startz, 31 W. Va. 220, 6 S. E. 485; Beck v. Thomp- 
son, 31 W. Va. 459, 7 S. E. 447. 

30. Mayer v. Frobe, 40 W. Va. 246, 22 S. E. 58. There is a recent 
West Virginia case which holds an instruction on exemplary dam- 
ages improper, but it does not pass upon the constitutionality of the 
provision. See Greer v. Arrington, 72 W. Va. 693, 79 S. E. 720. 



184 THE VIRGINIA PROHIBITION ACT. 

The civil damage act gives a right to exemplary damages, as 
well as actual damages, and the jury may award exemplary 
damages upon proof of such facts only as will entitle the party 
complaining to actual damages. It is not necessary, as it is in 
other actions for torts, that the wrong complained of should 
have been committed maliciously, or wantonly and deliberately, 
in order to justify the finding of exemplar}- damages; the un- 
lawfulness of the act is sufficient under the statute. 31 



31. Duckworth v. Stalnaker. 68 W. Va. 197, 69 S. E. 850. 



XIV. Property and Contract Rights. 

§ 136. Property Rights. 

§ 137. Validity and Enforcement of Contracts. 

§ 136. 'Property Rights. 

In violation of the provisions of the act no property rights 
can be claimed in ardent spirits or property used in connection 
therewith, whether acquired before or after the time the act 
was enacted or took effect. 1 

§ 137. Validity and Enforcement of Contracts. 

Contracts inhibited by the act or in contravention thereof 
are against public policy and void and unenforcible. There can 
be no recovery for property parted from nor payments made 
thereunder, unless such recovery will aid in the enforcement 
of the act or will further public policy. The contract is void 
although made outside of the state, where its effect is to violate 
the laws of the state. 2 

A note taken in payment for ardent spirits shipped into the 
state to be sold in violation of the act, of which the payee has 
knowledge, is void and unenforceable. 3 



1. See ante, "Personal Liberty and Private Property," § 6. 

2. Chas. M. Pfeifer & Co. v. Love's Drug Store, 88 S. E. 343. 

3. Crigler v. Saramore (Ga. App.), 88 S. E. 901. 



185 



Ind 



ex 



(references are to sections) 



ACTION. 

See Civil Damage Act. 

ADVERTISING. 

Constitutionality of Act, 29. 
Injunction, 29. 
Manufacturer of Drugs, 29. 

AFFIDAVITS. 

Authority to Administer Oath, 
95. 

By Intemperate Person, 95. 

Carriers — Delivery to Agent of 
Consignee, 52. 

Carrier — Delivery of Dena- 
tured Alcohol, 59. 

Carrier — Delivery to Druggist 
—Hotel, 59, 74. 

Carrier — Duty of Employee, 57. 

Carrier — Of Consignee, 52, 59. 

Druggist — Purchaser, 63. 

Duplicate, 59, 95. 

Employee — Duty to "Keep, 59. 

False, 52, 88, 95. 

Filing with Clerk, 59, 68, 95. 

Liability of Affiant, 59. 

Stamping — By Druggist, 68. 

AGENTS. 

Carrier — As to Record and Af- 
fidavit, 57. 

Carrier — Soliciting — Collect- 
ing, 57. 

AIDING IN PROCURING. 
Carriers — Liability, 57. 
Employee of Hotel, 76, 77. 
In General, 38. 



APPEAL, 125. 
APPROPRIATION, 102. 
ARDENT SPIRITS. 

Definition, 12. 
ARREST. 

Bail, 112. 

Complaint or Information, 
111(2). 

Custody of Prisoner, 111(6). 

In General, 111. 

Manner of Making, 111 (5). 

Person Transporting in Wagon, 
etc., 32(3). 

Warrant, 32(3), 111(2). 

Who May Be Arrested, 111(3). 

Who May Make, 111(4). 

Who May Make — Commis- 
sioner, 99. 

ATTEMPTS. 

To Manufacture, 28. 

ATTORNEY FOR COMMON- 
WEALTH. 

Assistant Prosecuting Attor- 
ney, 103. 

Commissioner Associated with, 
99. 

Duty to Prosecute — Transport- 
ing in Wagon, 32(3). 

Examination of Record, 94. 

Power to Dismiss, 103, 123. 

Power to Enforce Act, 103. 

ATTORNEY GENERAL. 

Prosecution — Request by Com- 
missioner, 99. 



[ 187 



188 



ATTORNEYS. 

Assisting Commissioner. 101. 
Employed by Commissioner, 

99. 

AUTOMOBILES. 
Drinking in, 36. 
Person in Charge of — Aiding 

in Procuring, 38. 
Sale— Bond, 32(3), 108. 
Search and Seizure, 32(3). 108. 
Transporting in, 32(3). 

BAGGAGE. 

Transporting in, 32 (3). 

BAIL. 

In General, 112. 
Person Transporting in Wagon, 
etc., 32(3). 

BANK. 

Collecting Draft, 39. 
BILL OF LADING. 

Collecting Draft Attached to. 
38. 

BOARDING HOUSE. 

See Hotel. 
Keeping in Possession in. 

73. 74. 
License — Can Not Obtain. 72. 

BOND FOR GOOD BEHAV- 
IOR, 112. 126. 

BOWLING ALLEY. 82. 

BURDEN OF PROOF. 

In General, 117. 

On Prosecution of Druggist, 

71. 

CARRIERS. 

Affidavits — Contents, 59. 
Affidavit — Of Consignee. 52. 
Affidavit — Of Druggist 
Hotel Keeper, 52. 



IXDEX. 

(REFERENCES ARE TO SECTIONS) 

CARRIERS— cont'd. 

Aiding in Procuring, 57. 



Of 



Collecting, 56, 57. 

Container, 55. 

Container— Label, 32(1). 

Consignee — Minor — Student, 
52. 

Definition — Common Carrier, 
20, 51. 

Deliver}- — Affidavit of Con- 
signee, 59. 

Delivery — False Representa- 
tion of Consignee, 52. 

Delivery — Quantity, 32(1), 53. 

Delivery — Quantity — to Hotel 
— Druggist, 53. 

Delivery — Time — Sunday, 52, 
54. 

Delivery — To Agent of Con- 
signee, 52. 

Delivery — To Druggist — Hotel 
— Hospital, 52. 

Delivery — To Intemperate Per- 
son, 91. 

Delivery — To Minor. Student 
or Female, 52. 

Deliver}- — To Whom Made, 
32(1), 52. 

Drinking on Train. 36, 56. 

Employee — Aiding in Procur- 
ing, 38. 

Employee — Duty as to Record 
and Affidavit, 57, 59. 

Employee — Soliciting — Col- 
lecting, 57. 

Label on Container, 55. 

Liability — Person Taking 
Drink. 56. 

Liability — Soliciting — Col- 
lecting, 56. 

Liability — L'se by Consignee, 
56. 

Quantity That May Be De- 
livered, 53. 



INDEX. 



189 



(references are to sections) 



CARRIERS— confd. 

Record — In General, 58. 

Record — Signing by Con- 
signee, 52. 

Soliciting, 56, 57. 

Transporting into State, 32(1). 

What Carriers May Trans- 
port, 51. 

CHEMIST. 
> 

Certificate as Evidence, 118(2). 

Compelling to testify, 120. 
CIDER. 

Definition, 14. 

Manufacture — Domestic Con- 
sumption, 46. 
Nonalcoholic. 46. 

CITIES AND TOWNS. 
Definition, 22. 

Enforcement of Act by Ordi- 
nance, 104. 

CIVIL DAMAGE ACT. 
Action — Form of. 132. 
Burden of Proof. 134. 
Constitutionality of Provision, 

127. 
Damages — Measure, 135. 
Damages — Exemplary, 135. 
Form of action. 132. 
Injury to Means of Support, 

130. 
Jurisdiction and Venue, 131. 
Mental Anguish as Damages. 

135. 
Pleading, 133. 
Trial, 134. 
When Right of Action Exists, 

130. 
Who May Be Sued, 129. 
Who May Sue, 128. 

CLERK OF COURT. 

Prescription — Affidavit — Fil- 
ing by Druggist, 68. 



CLOSING BUILDING, 105. 

CLUB. 

Closing, 105. 

Giving Away in, 26. 

Keeping in, 81. 

COLLECTING. 

Carrier — Liability, 57. 
Draft, 39. 

COMMISSIONER OF PROHI- 
BITION. 
Definition, 19. 
Department — Head of, 99. 
Deputies and Inspectors, 100. 
Election — Bond. 98. 
Examination of Record, 94. 
Notice to attend trial, 113. 
Powers — Generally Stated, 9H. 
Report, 99. 

Suspension — Vacancy, 98. 
Term of Office— Salary, 98. 

COMMISSIONER OF AGRI- 
CULTURE. 
Power and Duty. 103. 

COMPOUNDS, 12. 

CONSTITUTIONAL LAW. 

Advertising, 29. 

Constitutional Provision — Con- 
struction, 2. 

Due Process of Law, 6. 

Interstate Commerce, 5. 

Interstate Commerce — Adver- 
tising, 29. 

Interstate Commerce — Trans- 
porting out of State, 33. 

Partial Validity, 7. 

Personal Liberty and Private 
Property, 6. 

Police Regulation, 4. 

Police Power — Advertising, 29. 

Power of Legislature, 2. 

Searches and Seizure, 110. 
29, 31. 

Title and Subject Matter, 3. 



190 INDEX. 

KgF£KglfC3gS ARE TO SECTIONS) 

CONSTRUCTION OF ACT. 

Liberal. 10. 
CONTAINER. 

Destruction or Sale of. 1 B 

Label. 32(1), 55. 

CONTEMPT. 

Fit Violation of Injunction, 
106. 107. 

CONTRACTS 

In Violation of Acl \ :37. 

: : sts. 

In General. 124. 
Injunction Proceeding. 106. 



DENATURED ALCOHOL— 
cont'd. 
Delivery — Record of. " ; 
Keeping in Possession — Ho- 
tel. 73. 
Sales — By Druggists. 65. 

DENTISTS. 

Keeping — Grain Alcohol. 92. 

Sale to — By Druggist. 64. 

DEPARTMENT OF PROHI- 
BITION. 
Head of. 99. 

AND INSPECT- 



YV::::±55 Fees, :so. 

COUNTIES 

Exempt from Act — As to Ho- 
tel, n 

CRIMINAL LAW. 

See Enforcement of Act. 

DAMAGES 

Civil Damage Action. 135. 

DEFINITIONS. 
Adent Spirits. 12. 
Carrier. 20. 
Cider. 14. 

Cities and Towns. 22. 
Commissioner of Prohibition. 

19. 
Home. 15. 

Intemperate Person. 1 - 
Intoxication. 17. 
Person. 16. 
Person Adicted to Use of Nar- 

DELIVERY. 

DENATURED ALCOHOL - 
Delivery — Affidavit. 59. 



DEPUTIES 
ORS. 
Appointment and Removal. 99, 

100. 
Powers. 100. 

7RUCTION OF ARDENT 
SPIRITS. 35. 108. 

DISMISSAL. 123. 

Power of Attorney for Com- 
monwealth. 103. 

DISPENSARY. 33. 
DISPENSING. 87. 
DRINKING IN 

PLACE. 36. 
DRUGGISTS. 

Soft Drinks. 
Advertising — Wholesale, 
Affidavit — Filing. 68. 
Affidavit — Of Purchaser, 
Affidavit — On Delivery to by 

Carrier. 60. 
Bond. 61. 
Clerk — Liability of Druggist 

for Acts of. 69. 
Counties Exempt from Act. 70. 
Deliver}- to by Carrier, 52 ifl 

59. 60. 
Injunction — As Nuisance. 71. 
License — Application — Notice 
61. 



PUBLIC 



29 



INDEX. 



191 



(references are to sections) 



-DRUGGISTS— cont'd. 

License — Bond, 61. 

License — Forfeiture, 71. 

Manufacturer — Advertising, 29. 

Nuisance — When May Be De- 
clared, 71. 

Prescriptions, 62, 68. 

Prosecution and Punishment, 
71, 117. 

Purchaser, 69. 

Qualification, 61. 

Register — Prescription, 62. 

Sales — At Wholesale, 61. 

Sales— Label, 67. 

Sales — Quantity for Sale, 66. 

Sales— To Whom Sold, 64, 91. 

Sales— What May Be Sold, 65. 

Statement of Amount on 
Hand, 68. 

Wholesale — Affidavit of Pur- 
chaser, 63. 

Wholesale — License, 61. 

ENFORCEMENT OF ACT. 

Appeal, 125. 

Appropriation for, 102. 

Assist, 111. 

Attorney for Commonwealth, 
103. 

By closing Building, 105. 

By Destruction of Ardent Spir- 
its, 108. 

By Enactment of Ordinances, 
104. 

By Injunction, 106. 

By Punishment for Contempt, 
107. 

By Sale of Container — Wagon, 
etc., 108. 

Costs, 124. 

Dismissal of Prosecutions, 103, 
123. 

Evidence, 118. 

Indictment, 116. 

Instructions, 121. 



GIVING AWAY— cont'd. 
Jurisdiction, 115. 
Jury, 115. 
Jury Trial, 122. 
Limitations of Actions, 114. 
Notice to Commissioner to At- 
tend Trial, 113. 
Power of Officer, 103. 
Punishment, 126. 
Sale of W T agon, 108. 
Search and Seizure, 110. 
Venue, 115. 
Evading Law, 41. 
Giving Away, 26. 
Keeping in Possession, 35. 

EVIDENCE. 

Admissibility, 118(2). 

Civil Damage Action, 134. 

Injunction Proceeding, 106. 

Procuring, 118(1). 

United States Revenue Tax, 79. 

Variance, 119. 

Weight and Sufficiency, 118(3). 

Witness, 120. 

EXEMPLARY DAMAGES. 

Civil Damages Action, 135. 
EXPRESS COMPANY. 
See Carriers. 

FEMALE. 

Delivery to — As Agent of Con- 
signee, 52. 
Delivery to by Carrier, 52. 
Giving to, 26. 
In General, 88. 
Keeping in Possession, 35. 

FLAVORING EXTRACTS, 28, 
43, 65. 

FRATERNITY HOUSES, 81. 

GIVING AWAY. 

By Transient Guest, 26, 35. 

Club — Fraternity House, 81. 



192 



INDEX. 
(REFERENCES ARE to sections) 



DRUGGISTS— confd. 

Evading Law, 41. 

In Home, 26. 

In Hotel. 75. 

In Pool Room — Bowling Alley. 

82. 
To Evade Law, 26. 
To Female, 26. 
To Infant or Intemperate. 26. 



L'nlawful, 26. 

GOVERNOR. 
Suspension of 



Commissioner. 



98. 



GRAIN ALCOHOL. 44. 65. 
GRAND JURY. 

Appearing Before — Commis- 
sioner, 99. 

HOME. 

Definition. 15. 
Giving Away in. 26. 
Keeping in. 35. 
Transporting to. 31. 

HOSPITAL. 

Delivery to. 52, 58, 59. 
Keeping in Possession. 80. 
License. 80. 

Selling — Prescription, 80. 
Statement of Amount on Hand. 
80. 

HOTELS. 

Bell Boy — Aiding in Procur- 
ing, 38. 

Bond — For License, 72. 

Counties and Cities Exempt. 
*74. 

Definition — Home, 15. 

Delivery to by Carrier. 52. 55. 
59. 

Employee — Aiding in Procur- 
ing. 76. 77. 



HOTELS— confd. 

Employee — Duty to Discharge. 
78. 

Giving Away in, 26, 75. 

Guests — Liability for Acts of, 
76. 

Guest — Rights and Liabilities, 
78. 

Keeping in Possession — In 
General, 73. 

Keeping in Possession — For 
Cooking and Baths, 74. 

Keeping in Possession — Rules 
of Commissioner, 74. 

Liability for Acts of Employee 
and Guest. 76. 

License — Bond, 72. 

License — Intemperate Person, 
91. 

Manager — Hotel Keeper. 73. 

Prosecution and Punishment, 
79. 

Rules Prescribed by Commis- 
sioner. 74. 

Sale to— By Druggist, 64. 

Selling, 75. 

Statement of Amount on 
Hand. 74. 

Traveler — Giving Away, 26. 

Traveler — Keeping in Posses- 
sion, 35. 

HOUSES OF PROSTITU- 
TION. 83. 

INDICTMENT. 

Form — Requisites, 116. 

INFANT. 

See Minor. 

INJUNCTION. 

Advertising — Enjoining, 29. 
Bill-Sufficiency, 106. 
Contempt, 106, 107. 
Costs and Attorney's Fee, 106, 
124. 



INDEX. 



193 



(REFERENCES ARE TO SECTIONS) 



INJUNCTION— cont'd. 

Enforcement of Act by, 106. 
Enjoining Drug Store, 71. 
Evidence, 106. 
Grounds for, 106. 
Jurisdiction, ]06. 
Parties, 105. 

Power of Commissioner to 
Sue, 99. 

INSTRUCTIONS. 

Civil Damage Act, 134. 
Criminal Prosecutions, 121. 

INTEMPERATE PERSONS, 91. 

Compelling to Testify, 120. 
Definition, 18, 91. 
Delivery to — As Agent of Con- 
signee, 52. 
Delivery to by Carrier, 91. 
Giving to, 26, 91. 
Granting Hotel License to, 91. 
Keeping in Possession, 35. 
Physician, 91. 
Sale to— By Druggist, 64, 91. 

INTERSTATE COMMERCE. 

Advertising, 29. 

In General, 5. 

Transporting out of State, 33. 

Webb-Kenyon Act, 5. 

INTOXICATION. 

Definition, 17. 

Under Civil Damage Act, 127- 
130. 

JAMAICA GINGER, 28, 33, 47, 
65. 

JURISDICTION. 

Averment of, 116. 
Civil Damage Action, 131. 
In General, 115. 
Injunction Proceeding, 106. 



JURY TRIAL. 
In general, 122. 
Jury from Another County, 

115. 
Trial without, 115. 

JUSTICES OF THE PEACE. 
Power and Duty, 103. 

KEEPING IN POSSESSION. 

By Female, 35. 

By Intemperate Person, 35. 

By Minor, 35. 

By Person Travelling, 35. 

Burden of Proof, 117. 

Destruction When Found in 
Possession, 35. 

Evasion of Act, 35. 

For Sale, 35. 

In Boarding House, 73. 

In Bonded Warehouse, 35. 

In Club — Fraternity House, 81. 

In General, 35. 

In Home, 35. 

In Hotel, 73. 

In Pool Room — Bowling Alley, 
82. 

In Winery, 35. 

Purpose for Which Kept, 35. 

Quantity That May Be Kept, 
35. 

Right Affected by Time Ac- 
quired, 35. 

Unlawful, 35. 

LABELS. 

Sale — By Druggist, 67. 
Shipment by Carrier, 55. 
Toilet Articles — Preparations, 
65. 

LABORATORY. 

Delivery to by Carrier, 52, 58, 

59. 
Keeping, 80. 
Statement of Amount on Hand, 

80. 



—13 



194 



of 



LICENSE. 

Application for — For Sale 

Soft Drinks, 50. 
Druggist — Bond, 61. 
Druggist — To Manufacture — 

Wholesale, 61. 
Hospital, 80. 
Hotel. 72. 
Manufacture — Grain Alcohol, 

28. 
Revocation. 50. 126. 
Soft Drinks. 50. 

LIMITATION OF ACTIONS. 
114. 

LODGE ROOM, 15. 26. ST. 

MALT DEFINITION. 12. 

Grinding — Unlawful, 34. 
MANUFACTURERS. 

In General. 92. 

MANUFACTURING. 

Advertising — Of Drugs. 29. 
Alcohol — Grain, Fruit and 

Ethyl, 28. 
Attempt to Manufacture. 28. 
Flavoring Extracts. 2 - 
Grinding Malt. 34. 
Jamaica Ginger, 26. 
License — Grain Alcohol, 28. 
Medicines and Preparations. 28. 
Persons Liable. 28. 
Unlawful. !£ 

MAYOR. 

Jurisdiction. 115. 
MEANS OF SUPPORT, 130. 
MEDICINE. 23, 28. 29, 43. 65. 
MENTAL ANGUISH. 

Civil Damage Action. 135. 
MINOR. 

Affidavit— False. 88. 

Definition. B8 



INDEX. 

(REFERENCES ARE TO SECTIONS) 

MINOR— tonfd: ' 

Deliver}- to — As Agent of Con- 
signee. 52. 
Delivery to by Carrier, 52. 
Giving to. B8. 

Keeping in Possession, 35. 
Sale to — By Druggist, 64. 
Sending to Obtain, 88. 

MIXTURES. 12. 

NEWSPAPERS. 

Advertising. 29. 

NOTICE. 

See Commissioner of Phohibi- 
tion; License. 

NUISANCES. 

See Injunction. 

OFFICERS. 

Advertising — Abating, 29. 
Power — Arrest, 111(4). 
Power — Attorney for Common- 
wealth, 103. 
Power— Sheriffs. 103. 

ORDERS. 

Soliciting and Receiving, 37. 

ORDINANCES. 

Enforcement of Act by. 104. 

PARTIAL VALIDITY. 7. 



PARTIES. 

Civil Damage Action, 127, 123. 
Injunction Proceeding, 106. 

PEACE BOND. 112. 126. 

PERJURY, 52. 

PERSON, 16. 

PERSONS ADDICTED TO 
USE OF DRUGS, 18. 

PERSONAL LIBERTY AND 
PRIVATE PROPERTY. 6. 



PHYSICIAN. 

Intemperate Physician, 91. 
Keeping — Grain Alcohol, 92 
Prescription — Register, 62. 
Prescription, 62, 91. 
Sale to— By Druggist, 64. 



PLACE OF COMMON 
SORT, 15, 26. 



133. 



115. 



PLEADING. 
Civil Damage Action, 

POLICE JUSTICE. 
Power and Duty, 103 

POLICE POWER. 
Advertising, 29. 
In General, 4. 

Personal Liberty and Private 
Property, 6. 

POOL AND BILLIARD 
ROOMS, 82. 

PRESCRIPTIONS. 
Duplicate, 95. 
Filing with Clerk of Court. 68. 

95. 
Hospital, 80. 
Register, 62. 
Stamping, 68. 

PRESUMPTIONS. 

See Burden of Proof. 

PRIMA FACIE CASE. 
See Burden of Proof. 
PROCURING. 

Aiding, 38. 
PROPERTY RIGHTS, 6, 136. 
PROSECUTING ATTORNEY. 
See Attorney for Common- 
wealth. 

PROSECUTION AND PUN- 
ISHMENT. 
See Enforcement of Act. 



INDEX. 195 

(references are to sections) 

PUBLIC PLACE. 

Drinking in, 36. 
PUNISHMENT. 

In General, 126. 
PUCHASING. 

Unlawful, 24. 
QUANTITY. 

See Carriers; Druggists; Keep- 



RE- 



ing in Possession. 
RAILROADS. 

See Carriers. 

RECEIVING ORDERS, 37. 
RECORDS. 

Alphabetical Arrangement, 58. 

As Evidence, 58. 

Carrier — Signing by Consignee, 
52. 

Delivery to Hotel, 74. 

Duty to Keep, 57, 58. 

Examination, 58, 94, 99. 

Kept by Hospital, 80. 



REPEAL OF 
UTES, 9. 



PRIOR STAT- 



RUM. 

Denatured, 45. 

Sales — By Druggist, 65. 

SALE OF PROPERTY. 
Wagon, Automobile, etc., 32(3). 

SEARCHES AND SEIZURES. 
Complaint and Information, 110. 
Property — Custody of, 110. 
W r agon, Automobile, etc., 32(3). 
Warrant, 32 (3), 110. 
Who May Make — Commis- 
sioner, 99. 
Wrongful Seizure, 110. 

SECOND OFFENSE. 
Indictment, 116. 
Punishment, 126. 



196 INDEX. 

(references are to sections) 
SELF-INCRIMINATION, 120. STORES, 82. 
SELLING. 

Agent — Employee, 25. 



Cider and Vinegar, 46. 
Defense — U. S. License, 25. 
Hospital, 80. 
Hotel, 75. 
Intent, 25. 
Jamaica Ginger, 47. 
Quantity — By Druggist, 66. 
Ordering — Distributing, 25. 
Soft Drinks — License, 50. 
Unlawful, 25. . 



SENDING 
TAIN, 



MINOR TO OB- 



SHERIFFS. 
Power, 103. 

SODA WATER. 

See Soft Drinks. x 

SOFT DRINKS. 

Ardent Spirits as Flavor, 49. 
Constitutional Law — Title of 

Act, 3. 
Definition, 13. 
In General, 49. 

SOLICITING. 

Carrier — Liability, 57. 
In General, 37. 

Through United States Mail. 
37. 

STAMPS. 

Prescription — Affidavit. 68, 96. 
Sale, 96. 

STATUTES. 

Construction — Liberal, 10. 

Partial Validity, 7. 

Other Acts. 9. 

Repeal of Prior Statutes, 9. 

Time of Taking Effect. 8. 



STREET CARS. 
Drinking in, 36. 

STREETS AND HIGHWAYS. 
Drinking in, 36. 

STUDENT. 

Delivery to by Carrier, 52. 
Keeping in Possession, 90. 

SUNDAY. 

Delivery on by Carrier, 52, 54. 
TIME OF TAKING EFFECT, 8. 

TITLE AND SUBJECT MAT- 
TER OF ACT, 3. 

TOILET ARTICLES, 43, 65. 

TRANSFERRING ESTATE, 

40. 

TRANSPORTING. 

Carrier — -What May Transport, 

51. 
From Station to Home, 31. 
In Baggage, 32(2). 
In General, 31. 
Into State, 32(2). 
In Wagon, Automobile, etc., 

32(3). 
Out of State, 33. 
Out of State — Jamaica Ginger. 

47. 

TRAVELER. 

Carrying Ardent Spirits — In 

Baggage, 32(3). 
Guest at Hotel— Rights, 78. 
Keeping in Possession, 35. 
Liability of Hotel for Acts of, 

76. 
Transporting out of State, 33. 

TRIAL. 

See Enforcement of Act. 
Civil Damage Action, 134. 



TRIAL— cont'd. 

Jury, 122. 

Notice to Commissioner to At- 
tend, 113. 



UNITED STATES REVENUE 

TAX. 
As Evidence — As to Hotel, 79. 
Burden of Proof, 117. 
Defense to Selling, 25. 
Denatured and Wood Alcohol, 

45. 
Publication of List of Holders, 

99. 

VARIANCE, 119. 

VENUE. 

Civil Damage Action, 131. 
Criminal Prosecution — Change 
of, 115. 

VETERINARIES. 

Keeping — Grain Alcohol, 92. 
Sale to — By Druggist, 64. 

VINEGAR. 46. • 
WAGON. 

Sale— Bond, 32(3), 108. 

Search and Seizure, 32(3). 

Transporting in, 32(3). 



INDEX. 197 

(references are to sections) 

WAREHOUSE. 

Bonded — Keeping in Posses- 
sion, 35. 

Advertising — Removing, 29. 

Arrest, 111(2). 

Search — Wagon, Automobile, 
etc., 32(3). 

Search Warrant, 110. 



WARRANT. 

Witnesses indorsed on, 120. 
WEBB-KENYON ACT, 5. 

WHOLESALE. 

See Druggists. 

WINE, 14, 46. 

WINERY. 

Keeping in Possession, 35. 
Transporting out of State, 33. 

WOOD ALCOHOL, 45, 73. 

WIFE. 

Right to Civil Damages, 128. 

WITNESSES, 120. ' 

WRONGFUL SEIZURE, no. 



QUESTIONS AND ANSWERS 

TO 

BAR EXAMINATIONS 



BY 

T. B. BENSON 



"The scope of the Bar examinations within the 
last five or six years has been very much changed 
and broadened and to have a handy help like this must 
necessarily be of great assistance to those who have 
to stand the examination under the new system. 
The work is well done, accurate and concise, and 
we commend it not only to the student who has not 
had the advantage of a University law course, but 
also to those who have graduated and who need to 
refresh their University knowledge. The practi- 
tioner will find it of value in reference to late cases 
and in freshening up his knowledge of law." 2 Va. 
Law Reg. (N. S.), 79. 



ORDER FORM. 



191 . . 

Anderson Brothers, 

University, Va. 
Gentlemen : 

Find enclosed $2.00 for which send me Ques- 
tions and Anszvers to Bar Examinations (1916), by T. B. 
Benson. 



Signed 



Address 



